Arrangement of Business
 - Announcement

Lord Ashton of Hyde: My Lords, before we begin proceedings on the Bill, I thought it would be helpful if I outlined the arrangements for today. We will sit until 2 pm in Committee on the Bill. We will then break until 3 pm. At 3 pm, the House will return for Oral Questions. After Oral Questions, we will resume proceedings on the Bill. The House will break again at 6.45 pm for questions on a Statement on Ukraine. After the Statement, we will continue proceedings on the Health and Care Bill.
We have so far spent over 30 hours in Committee on this important Bill across five days. We have three days remaining to complete Committee. I am sure I speak for the whole House when I say that none of us wishes to debate important issues in the early hours of the morning, but without further progress on the Bill we might be left with no choice but to do this. We therefore need to ensure that the Bill receives proper scrutiny effectively, but succinctly.
I know, because I have had very helpful discussions with the Opposition Chief Whips and the Convenor, that the Front Benches will seek to ensure that all their contributions are brief and focused. I urge—indeed, beg—all noble Lords with an interest in this Bill to do the same, to be as concise as they feel able to be in their contributions, to speak briefly to the amendments before the Committee, and not to rehearse arguments that would be more suited to a Second Reading. In this way, we can ensure that all the amendments to this important Bill receive the attention they deserve.

Health and Care Bill
 - Committee (6th Day)

Relevant documents: 15th and 16th Reports from the Delegated Powers Committee, 9th Report from the Constitution Committee

  
Clause 20: General functions

Amendment 106

Lord Sharkey: Moved by Lord Sharkey
106: Clause 20, page 20, leave out lines 20 to 43

Lord Sharkey: My Lords, Amendment 106 is in my name and those of my noble friend Lady Walmsley and the noble Baroness, Lady Thornton. I am very grateful for their support.
Two months ago, two of our Select Committees, the DPRRC and the SLSC, published simultaneous and collaborative reports. The DPRRC report is entitled Democracy Denied? The urgent need to rebalance power between Parliament and the Executive, and the SLSC report is called Government by Diktat: A call to return power to Parliament. It would be very hard to exaggerate the importance of these reports, and I congratulate both committees on a very timely and disturbing reminder of the Government’s habit of trying to bypass Parliament and avoid effective scrutiny, as they do again in this Bill.
Both the reports focused on the long-standing abuse of the use of delegated powers legislation, and the DPRRC concluded:
“The abuse of delegated powers is in effect an abuse of Parliament and an abuse of democracy, and this report will, we hope, be a prompt to strengthen Parliament in the coming years.”
We can make a start on that hope with this Bill.
The DPRRC noted in its report of 15 December that the Bill contains 155 substantive provisions and 156 delegated powers. It concluded:
“The Health and Care Bill is a clear and disturbing illustration of how much disguised legislation a Bill can contain and offends against the democratic principles of parliamentary scrutiny.”
The report examines some of the Bill’s clauses in some detail, including the insertion via Clause 20 of a new Section 14Z48 into the National Health Service Act 2006. Essentially, the new section gives a Minister the power to make law by simply publishing “a document”. The department tries to justify the lack of any parliamentary procedure associated with the publication of a document on the grounds that the power is concerned with operational and administrative matters. However, the DPRRC goes on to say:
“Such a power is very unusual. If used in a context other than one involving public sector health bodies, it might give grave cause for concern and set an extraordinary precedent. Statutory liabilities should be imposed transparently, subject to clear legal conditions and parliamentary scrutiny.”
I should point out here the force of the word “unusual” in the committee’s comments. This is the highest form of disapprobation used by committees, and for good reason. This proposed new section is a blatant, transparent and disgraceful attempt to avoid any parliamentary scrutiny whatever.
The DPRRC’s conclusion is damning. It says:
“The power to impose a legal liability by merely publishing a document, without any parliamentary scrutiny, is a striking example of disguised legislation. We regard it as an inappropriate delegation of power, which should be removed from the Bill.”
In its report on the Bill of 7 January, the Constitution Committee agreed with the DPRRC’s recommendation to remove the new section from the Bill. I agree strongly, and that is what our amendment would do. I suggest to the Minister that if he wants to retain the powers set out in proposed new Section 14Z48, he rework them between now and Report so that they at least involve scrutiny by the affirmative procedure. If not, he can certainly expect us to return to this serious abuse of delegated powers on Report. I beg to move.

Lord McFall of Alcluith: My Lords, the noble Baroness, Lady Brinton, is taking part remotely and I invite her to speak.

Baroness Brinton: My Lords, we have just heard a very powerful contribution from my noble friend Lord Sharkey, reminding Ministers and your Lordships’ House of the importance of the problem of Ministers taking delegated powers, stopping Parliament doing its job properly. I support his amendments.
Amendments 133, 139 and 161 in this group, from the noble Baroness, Lady Greengross, are on continuing healthcare and I can think of no better person in your Lordships’ House to speak about the importance of that. I look forward to her speech. I am pleased to support her amendments and will speak to them now. The NHS definition says:
“Some people with long-term complex health needs qualify for free social care arranged and funded solely by the NHS. This is known as NHS continuing healthcare.”
The full continuing healthcare assessment and the toolkit for updating assessments are absolutely vital for any multidisciplinary team and, at least in theory, these amendments put them on a formal footing as part of the smooth package of care that individuals need. The amendments establish a duty to fund and assess continuing healthcare, which needs to be visible, not least because of the abuses in the current system.
The principles of continuing healthcare in current legislation are fine, but unfortunately, as money has got tighter, there are problems with how they work in practice. There are many reports of CCG assessors and social workers having disruptive and degrading discussions, sometimes with family members present, about whether a particular issue is a continuing healthcare or a personal care need, which would be funded by the patient or their local authority, or the NHS. I personally witnessed a debate about the percentage split of continuing care versus personal care concerning the incontinence of a family member. It was not about the patient; it was solely about money and who would pay.
On the use of the toolkit, Beacon’s website states:
“When the Decision Support Tool has been completed and considered by the Multidisciplinary Team, they should have a genuine and meaningful discussion about whether they feel the individual has a primary health need. This is a role for the entire MDT, not just the CCG’s coordinating assessor and the social worker.”
“Not just” is an interesting phrase to use. The actual power is entirely in the hands of the parties who have the funding—in this case, either the CCG or the social worker; of course, the social worker acts on behalf of either the patient or their local authority. The reality is that it becomes a negotiation about who pays and can, as I said, end up as a haggle over percentages. It can feel as though the patient’s needs were long dispensed with. That is why these amendments are so important.
Amendment 133 states that ICBs’ annual reports must cover
“all commissioned services, including NHS continuing healthcare”.
I believe that this requirement will bring more focused attention on the assessments and the negotiations. Amendment 139 would require a performance assessment of continuing healthcare assessments, their results and their consequences. Finally, Amendment 161 would ensure regular reviews and performance assessments of continuing healthcare assessments, their results and their consequences.
The Government say that this is the Bill that will transform the commissioning of health and social care. In a perfect world, they would be a seamless service, both properly funded to deliver what the patient needs. By adding continuing healthcare to the Bill, it will be strengthened, and that golden thread between the NHS and the social care sector will run all the way through it. I hope the Minister will accept these three amendments, which would help to deliver exactly the change the Government want.

Baroness Greengross: My Lords, I will speak to Amendments 133, 139 and 161 in my name, and to Amendments 143 and 144 in the name of the noble Baroness, Lady Finlay, to which I have added my name.
Amendments 133, 139 and 161 are intended to clarify the role that continuing healthcare—CHC—will play, along with other commissioned services. The Continuing Healthcare Alliance has raised concerns about the provision of NHS continuing healthcare. The package of care is there to support people with ongoing and substantial needs in England. Examples of conditions for which someone may qualify for CHC include Parkinson’s, motor neurone disease and dementia, but there are many others as well.
Amendments 143 and 144 would strengthen the power of NHS England to give directions to integrated care boards. They would help to ensure national consistency of CHC services, which, sadly, is not always the case at present. When the Bill was debated in the other place, the Minister, Edward Argar, responded to a similar amendment as follows:
“It is right that clinical commissioning groups, as they are currently called, are held accountable for NHS continuing healthcare within their local health and social care economy. That will also be the case with the national move to integrated care boards, where the board will discharge those duties and be accountable for NHS continuing healthcare as part of its NHS commissioning responsibilities.”—[Official Report, Commons, Health and Care Bill Committee, 28/10/21; col. 825.]
Given this earlier response, I believe that it is the intention of the Government to improve the national delivery of continuing healthcare and to ensure more consistent delivery throughout England. The intention of this group of amendments is to clarify that in the Bill, so I commend Amendments 133, 139 and 161.

Baroness Finlay of Llandaff: My Lords, I added my name to Amendments 133, 139 and 161, which were so ably introduced by the noble Baroness, Lady Greengross, and others. I also have Amendments 143 and 144 in my name. All the amendments aim to tackle the accountability gap: the inconsistency of provision of continuing healthcare across different parts of England.
The noble Baroness, Lady Greengross, alluded to some diseases, but this goes much wider. There are people with spinal injuries and long-term multiple sclerosis and there are people who have had strokes. They all need ongoing long-term healthcare at a high level—way above the level that can be provided by social care.
The problem is that the accountability gap exists and there is inconsistency in the quality of provision, with eligibility criteria being interpreted differently in  different areas. Amendments 143 and 144 aim to strengthen the powers of NHS England in the Bill to give direction to integrated care boards, with the particular aim of closing this accountability gap. Within the existing system, NHS England is responsible for holding clinical commissioning groups accountable for their discharge of continuing healthcare and functions.
In the reformed system proposed by the Bill, NHS England will hold these boards accountable in a similar way, but I question whether it has adequate authority both in the current system and the proposed system and whether the levers available to it to act meaningfully are adequate. While the intention prior to the Lansley reforms was to give NHS England powers to intervene to create meaningful change in practice, the powers were restricted to high-level interventions where there was a failure of governance at the highest level, rather than interventions where a CCG was failing to implement good practice or to adhere to national policy.
The 2018 report by the Public Accounts Committee in the other place supported these concerns and stated:
“NHS England is not adequately carrying out its responsibility to ensure CCGs are complying with the legal requirement to provide continuing healthcare to those that are eligible.”
There are limited accountability mechanisms and there is inadequate data collection at present. These amendments seek clarification and would drive long-overdue improvements in the quality and, importantly, the consistency of the way that continuing healthcare decisions are made and the process is administered, with the aim of improving outcomes and reducing the strain of applying for continuing healthcare for people who live with complex health needs and for their loved ones, in particular their family and carers.

Baroness Pitkeathley: My Lords, I very much support the noble Baroness, Lady Greengross, in her amendments. We should be clear that continuing health needs are ignored by assessors because of the issue of who will pay. I have experienced this twice with neighbours and friends. It was clear to me that both patients had complex needs, mentioned by the noble Baroness, Lady Finlay, and had undeniable continuing care needs, so I was puzzled as to why the families were working out how to fund places for their relatives. They had never been told of the possibility of continuing NHS funding. I suggested that they quote the legislation back to the assessors and of course when they did so they found that funding would be provided—and some years later it is still being provided. Without this chance encounter with me, and asking the right questions, those families would have been denied the funding that is their right.

Baroness Barker: My Lords, as ever, it is a great pleasure to row in behind my former boss at Age Concern—the inspirational leader of Age Concern for so many years—to return to an issue that Age Concern and its successor body Age UK have for decades raised with successive Governments during successive NHS reorganisations.
It is important, at the outset of this debate, that we understand the true importance of NHS continuing care. On one level, an individual level, it is about enabling people who have long-term conditions to live  dignified lives in the community. At a strategic level, in terms of healthcare planning, it is about keeping people out of acute hospitals, which is the most expensive form of care.
The reason why it is right, again, that we seek to put these amendments on to the face of the Bill is that, at an organisational level within the NHS, there has never been a full accountability path for NHS continuing care. That means that, when it comes to individual decision-making on the part of members of staff in relation to individual patients, the decisions fall down. We have not just wide variation between different organisations but wide variation between particular practitioners, who sometimes resort to using non-standard checklists to make decisions, with inconsistent decision-making.
As a result of that, it is hardly surprising, but a real condemnation of a long-term failure of the NHS, that there is a need for an organisation such as Beacon to exist. It is a social enterprise set up by the main charities that gives information to older people and their carers. It should not have to exist. The fact that it does, and that it is a profitable social enterprise business, is testimony to the extent to which older people and their relatives are being badly let down on this.
I hope that in raising this yet again we have shone a light on a part of the NHS system that goes to the heart of what this Bill is supposed to be about. If we do not make this an express responsibility of the NHS in the Bill, yet again it is just not going to happen.

Baroness Walmsley: My Lords, I, too, support the noble Baronesses, Lady Greengross and Lady Finlay. It is right that people should have the cost-effective continuing care to which they have a right. I have my name on the amendment tabled by the noble Lord, Lord Sharkey, and I intend to make some very brief comments about that, although I make the point that the need for us to be brief is the Government’s own fault, because they have not given us enough days in Committee—fewer in fact that in another place.
On the amendment, we refer to the 15th report of the Delegated Powers and Regulatory Reform Committee. I have rarely read such a hard-hitting report by this highly respected committee. One of the worst of the Henry VIII measures that it mentions is allowing zero scrutiny on allowing NHS England, merely by the publication of a document, to impose a financial liability on an ICB. It specifies the circumstances in which an ICB is legally liable to make payments to a provider under arrangements commissioned by another ICB. The Government claim that this is an operational matter. However, if you believe that an ICB should be in total control of deciding how its funds are spent in its area in order to fulfil its duties, you might think that this is an important thing—a legal liability to pay for something that another organisation has decided to commission is quite a serious matter. The DPRRC thinks so and so does the Constitution Committee.
In their response to the DPRRC, as quoted in Appendix 1 of the committee’s 16th report, the Government said that they
“recognise that the Bill contains a significant number of guidance making powers, powers to publish documents and powers of direction.”
They suggest that
“these are appropriate because they reflect the often complex operational details, which are better illustrated by examples and guidance rather than legislation.”
The Government go on to say that there is currently a precedent in the powers of the clinical commissioning groups.
I do not believe that Parliament is unable to grasp technically complex matters, nor to understand them, when illustrated by examples given by a Minister at the Dispatch Box introducing a regulation. I suggest that that is what the Government should do instead of publishing a document; they should explain and give examples. It is patronising to Parliament to suggest that it cannot grasp these issues. The Government have gone too far. It is a power grab and I suggest that the Government withdraw and do exactly what my noble friend Lord Sharkey suggests.

Baroness Wheeler: My Lords, I thank the noble Lord, Lord Sharkey, for opening this important group and moving Amendment 106, to which my noble friend Lady Thornton added her name. As he explained, the substance of this amendment was singled out by the Constitution Committee and highlighted by the Delegated Powers and Regulatory Reform Committee. I reinforce the Constitution Committee’s endorsement of the DPRRC’s recommending the removal from Clause 20 of the imposition of legal liability merely by publishing a document. We agree with the two committees that this is a necessary amendment, and I look forward to hearing from the Minister how these concerns will be addressed.
Somewhat paradoxically, Amendments 143 and 144 strengthen the powers of NHS England in its quest for top-down management and imposition. However, they sit within the wider context of describing how NHS England would be able to give directions to integrated care boards under Clause 20 and improve these provisions, so we support them.
The remaining amendments on NHS Continuing Healthcare underline how vital it is to address this urgent issue, although it is not central to the intentions of the Bill. I thank the noble Baroness, Lady Greengross, for ensuring this focus in the debate and for Amendments 133 and 139, which ensure that this crucial issue is specified under the ICB’s duties and included in its annual report and performance review accountabilities.
Today, we heard in detail about the widespread concern about and scale of the problems with the way in which the NHS Continuing Healthcare scheme works and is funded, and the arguments it leads to about who pays for what, as a shared responsibility between the NHS and local government. Patients and their carers feel they are the sideshow, not the central focus of concern, and are deeply traumatised and upset by the whole experience.
As a carer of a disabled adult myself, like my noble friend Lady Pitkeathley, I know, from meeting many other carers and their loved ones, their deep concern about this. The three things that cause most concern and upset, which one hears time and again, are, first,  the huge problems with inadequately funded social care packages—or their absence—to meet basic care needs, and deep worries and anxieties about how the care cap will operate; secondly, the trauma of the discharge-from-hospital process for carers and their loved ones, which we will discuss later; and thirdly, NHS Continuing Healthcare, the postcode lottery of whether your loved one receives it or not, the huge bureaucracy around the application and allocation process, the long wait for a response and being stuck in the middle of an NHS local authority fight over funding. As the noble Baroness, Lady Finlay, stressed, there is an urgent need to tackle the accountability gap in this process.
NHS Continuing Healthcare is the absolute manifestation of what our Economic Affairs Committee report on the “national scandal” of social care funding called the “condition lottery”—in other words, the wide disparity between health conditions for which people receive healthcare that is free at the point of use and those for which users usually have to make a substantial contribution with “catastrophic costs”, in the committee’s words. As we heard today, dementia is the condition most cited in this regard, but many of us know of cases where people with motor neurone, Parkinson’s and other degenerative diseases have struggled to get NHS Continuing Healthcare funding, either for home care or support in residential homes.
We support Amendment 161, which ensures that the Care Quality Commission reviews must include this issue. However, I am unclear—and may well learn in a minute from the Minister—what role the CQC currently has in looking into all continuing care matters which traverse NHS and local authority boundaries. However, we support its involvement.
The amendment would also ensure that the CQC reviews include looking in depth at how NHS Continuing Healthcare is working under each ICB. That will mean that at last we can begin to develop the much needed strategic overview of this crucial area for thousands of people in desperate need of care and support.

Lord Kamall: My Lords, I thank the noble Lord, Lord Sharkey, and the noble Baronesses, Lady Finlay and Lady Greengross, for bringing this group of amendments.
I understand the intention behind Amendment 106, on payment to providers, which is to remove new Section 14Z48 in its entirety, but the section will allow NHS England to specify the circumstances in which an ICB is liable to make payments to a provider for services commissioned by another ICB.
The Government are committed to ensuring that delegated powers in the Bill use the most appropriate procedure, so that Parliament has due oversight of their use. We recognise that the Bill contains a significant number of guidance-making powers and powers to publish documents. However, we believe that they are appropriate because, as the noble Baroness, Lady Walmsley, said, they reflect the often complex operational details and the importance of ensuring that the guidance keeps up with best practice, especially as the system flexes and evolves. I understand the noble Baroness’s  point about Parliament, but the issue here is whether, every time the system flexes, Parliament has to have another debate. The ICBs will be reading the guidance, not Hansard, and the guidance should reflect that.
Nor is it our intention to interfere unduly in the financial affairs of ICBs. Instead, the intention is to resolve specific circumstances, such as emergency services. The legislation makes it clear that each ICB has to arrange for urgent care services to be available for all people physically present in the area, not just for the people who are its core responsibility by virtue of their GP registration. I am sure noble Lords will agree that it would be neither fair nor in the best interests of promoting an efficient health service for the ICB to both arrange and cover the cost of all additional emergency treatment brought by visitors to the area, particularly in areas with high visitor numbers. A number of noble Lords referred to that principle in debates last week.
Instead, this provision allows NHS England to mandate a different payment rule for those services, ensuring that, where necessary, the ICB where a patient is registered will pay, rather than the ICB where they receive treatment. This ensures that the financial impact is felt in the right commissioning organisation and eliminates the risk of some ICBs having unreasonable financial demands placed on them—for example, during the holiday season.
The wording of this provision replicates almost exactly the National Health Service Act 2006 as amended in 2012, but it is updated to reflect the new ICB structure. As my noble friend Lord Howe mentioned to me, we had a massive debate about this 10 years ago, but the provision seems to have worked effectively in the CCGs, and we wish to continue that with the ICBs.
Amendments 143 and 144, in the name of the noble Baroness, Lady Finlay, are about NHS England directing ICBs. I understand the interest in ensuring that NHS England has the necessary tools to intervene in ICBs where necessary. However, we believe that NHS England already has sufficient powers to direct ICBs. NHS England already has certain powers to direct an ICB under Section 14Z59(2), and powers to intervene over ICBs in order to prevent failure and to ensure that the lines of accountability from ICBs through NHS England to Parliament are strong.
However, this power has a threshold in that it can be used only if NHS England deems an ICB to be failing to discharge a function or at risk of failing to do so. The threshold removes the possibility of NHS England overdirecting the system while retaining the power for use if necessary. This balances the need to prevent failure and to support accountability with allowing ICBs the autonomy they need to operate effectively.
Amendments 133, 139 and 161 expressly require that ICB annual reports and NHS England performance assessments of ICBs include specific consideration of commissioned services, including NHS Continuing Healthcare, which noble Lords have spoken about, and that the CQC reviews of ICSs include specific consideration of that. We agree with the principle, but we believe that it is already covered in the Bill. NHS England already has a key role in overseeing ICBs. For example, the Bill requires NHS England to assess the  performance of each ICB every year, and ICBs are required to provide NHS England with their annual report. These reports will include an assessment of ICB commissioning duties, which would encompass any arrangements for NHS Continuing Healthcare.
In addition, as noble Lords are aware, Clause 26 gives the CQC a duty to assess integrated care systems, including the provision of relevant healthcare and adult social care within the area of each ICB. This would include the provision of NHS Continuing Healthcare. We intend the CQC to pilot and develop its approach to these reviews in collaboration with NHS England, but also with other partners in the system. This should ensure that the methodology does not duplicate or conflict with any existing system oversight roles.
With this in mind, we believe that these amendments are not necessary, because commissioned services, which we would expect to encompass NHS Continuing Healthcare, are already included in these clauses. I hope that I have been able to somewhat reassure your Lordships. For these reasons, I ask noble Lords not to press their amendments.

Lord Sharkey: My Lords, it is clear that new Section 14Z48 is an unambiguous abuse of delegated powers. It provides for a law to be created by the simple issuing of a paper. There is no real possibility of a coherent defence of this procedure and the Minister did not provide one, relying as he did on special pleading and the extraordinary notion that Parliament cannot handle complexity.
As the Bill stands, Parliament is bypassed and scrutiny is avoided. I remind the Committee that the DPRRC and the Constitution Committee have recommended the removal of this section. I again suggest to the Minister that if he wants to retain the powers set out in Section 14Z48, he should rework them between now and Report at least to involve scrutiny by Parliament via the affirmative procedure. If he does not, we will return to this issue on Report. In the meantime, I beg leave to withdraw the amendment.
Amendment 106 withdrawn.
Amendments 107 to 144 not moved.

Amendment 145

Lord Hunt of Kings Heath: Moved by Lord Hunt of Kings Heath
145: Clause 20, page 27, line 43, at end insert—“(3) Subsections (1) and (2) do not have effect if the information involves the personal data of patients.”Member’s explanatory statementThe amendment is aimed at ensuring that the power to disclose information should exclude personal data on patients and is a probing amendment to see what purpose the Government thinks the power in the clause may be used for.

Lord Hunt of Kings Heath: My Lords, my amendment concerns patient data. I want to probe the meaning of new Clause 14Z61, proposed by Clause 20(2), which relates to the permitted disclosure of information  by integrated care boards. It sets out, on page 27 of the Bill, a number of conditions under which disclosure can be made. They include when
“the information has previously been … disclosed to the public”
or
“the disclosure is made in accordance with any enactment or court order”.
That seems perfectly sensible. However, proposed new subsection (1)(f) contains a catch-all condition under which a disclosure can also be
“made for the purpose of facilitating the exercise of any of the integrated care board’s functions”.
That seems remarkably open-ended. My amendment seeks an assurance that this power excludes the personal data of patients.
We have already had one go at the issue of data and digital transformation, and I have told the House that I am right behind the efforts of the NHS and the Minister’s department to encourage the digital transformation of the NHS. The potential is clearly enormous. However, public confidence depends on the integrity of the system and having embedded in it a guarantee that every use of data will be consensual, safe and transparent.
The recent Laura Wade-Gery review, on which a number of noble Lords have commented, acknowledged some of those concerns. As she said:
“The field of data science is undergoing a revolution as new tools such as machine learning transform our ability to gain insights and improve outcomes. These advances, combined with the explosion of new data driven commercial business models, have caused citizens to be concerned about the privacy of their individual health data and the controls in place over its dissemination and use.”
There may be situations where a patient does not want a doctor—by the way, just for the Chief Whip’s reassurance, I have not spoken for 37 minutes as the clock says—to tell another doctor something about them, yet this can be ignored by those who want to copy records across a lifetime. Modern communications have created the capacity to copy medical records on a scale that can shatter medical confidentiality.
The experience of Care.data is surely a lesson for us. The decision to axe the scheme followed the publication of two reports that supported far greater transparency over what happens to the information, and opt-outs for patients who want their data seen only by those directly caring for them. A review by the late Dame Fiona Caldicott, and a second by the Care Quality Commission, recommended tougher measures to keep people’s medical information confidential. The Caldicott review said that there needs to be much more extensive dialogue with the public as to how their information can be used. As she said:
“Citizens have a right to know how their data is safeguarded. They should be included in conversations about the potential benefits that responsible use of their information can bring. They must be offered a clear choice about whether they want to allow their information to be part of this.”
This was brought home to me recently by NHS England’s announcement that it is to give trusts, as employers, access to the Covid and flu NHS vaccination records of their staff. I am fully behind the vaccination drive and sympathetic to the Government’s mandating of vaccines, but the announcement said:
“To assist Trusts with understanding the vaccination status of their workforce, we are providing a solution for Trusts to view the vaccination status of staff who are on the Electronic Staff Record … system. To do this, we are undertaking an exercise on Trusts’ behalf, to match ESR data, using NHS numbers, with vaccination data held in the National Immunisations Management System … which includes data drawn from all point of care vaccination systems. Following a successful import of ESR data into NIMS, a dashboard will be provided to each Trust detailing their workforce Covid and Flu vaccination uptake, drilled down to employee-level.”
Let me be clear: I support the vaccination drive, as I said, but am I the only one to worry about the access to confidential data that is being given? I recognise that we are talking here about electronic staff records as opposed to electronic patient records, but the principle of releasing patient data is the same.
I would like to hear some assurance from the Minister about the use of this clause and the open-ended nature of new Section 14Z61(1)(f), because, as I think we will shortly hear from the noble Baroness, Lady Brinton, such an open-ended disclosure provision in other legislation would be looked at with very great concern. Having said that, and having taken up 44 seconds, according to the Clock, I beg to move.

Lord Lexden: My Lords, I have failed in my duty, and not for the first time. I should have stated before calling Amendment 145 that the noble Baronesses, Lady Brinton and Lady Harris of Richmond, will be taking part remotely. May I apologise, and invite the noble Baroness, Lady Brinton, to speak?

Baroness Brinton: My Lords, this probing amendment from the noble Lord, Lord Hunt, is essential, because it protects confidential patient data from being given out by an ICB in contravention of the ethics rules of the General Medical Council and other regulatory bodies.
When the Police, Crime, Sentencing and Courts Bill arrived in your Lordships’ House in the autumn, it had clauses in it that gave the police, probation and prison services access to a patient’s confidential medical data as part of their role to reduce and prevent serious violence. As originally drafted, that Bill would have required GPs, CCGs and their staff to hand over that data. This was not just about those under suspicion; it could have been anybody involved in serious violence.
I had extreme concerns about this, and I tabled an amendment not dissimilar to Amendment 145. I was grateful for the support of the noble Lords, Lord Patel and Lord Ribeiro, the General Medical Council, the BMA and others in Committee on that Bill. We had meetings between Committee and Report with officials from the Department of Health and the Home Office, meaning that by the time we got to Report the Government had laid amendments to ensure that a patient’s personal data could not be demanded by the police, probation and prison services. It is now recognised that the medical regulators—the GMC, the Nursing and Midwifery Council and other bodies—actually have the responsibility and the excellent ethical standards by which their members are expected to judge what they should do if they are asked for personal data.
The amendment from the noble Lord, Lord Hunt, would address what data an ICB may disclose by adding a subsection to protect the Government in the  same way as happened in the police Bill, so that the personal data of patients should not be disclosed. This is a vital amendment. The Government have already accepted in this Parliament that a patient’s personal data must not be accessible by those other than clinical and clerical staff dealing with it, who must abide by the confidentiality rules of their regulatory body or by their employment contract.
This is even more necessary, because the Bill says in new Section 14Z61(1)(g), on permitted disclosures of information, that
“the disclosure is made in connection with the investigation of a criminal offence”.
That is even broader than in the original police Bill. Patient confidentiality is a fundamental ethical duty. It is crucial to upholding the trust that lies at the heart of the doctor-patient relationship. The new section will give the ICB the right to override that.
New paragraph (e) is also more far-reaching than the investigation of any crime. It says that
“the disclosure is made to any person in circumstances where it is necessary or expedient for the person to have the information for the purpose of exercising functions of that person under any enactment”.
So it is not the doctor or the ICB that has the choice about disclosing that information; they must take the word of the person making that request. That is total free access for anyone who says that it is necessary or expedient for them to have that information. Where is the protection of a patient’s individual and confidential data?
It also removes the decision from GPs, despite GPs having very clear and effective guidance from the GMC on when, in exceptional circumstances, they can give out data. I will not quote the whole of the guidance, because we do not have time, but there are two vital points that a GP must consider: the patient must consent, whether implicitly or explicitly; and disclosure must be permitted or must have been approved under a statutory process that sets aside the common-law duty of confidentiality. The doctor also has a duty, even when they have made their decision, to use anonymised information if practicable, and they must be satisfied that the patient has ready access to information explaining how their personal information will be used. It goes on, but I will not quote the rest.
One might hope that Ministers assumed when drafting the clause that confidential patient data would never be included, other than for the treatment of the patient. However, paragraphs (e), (g), (h) and (f), as the noble Lord, Lord Hunt, outlined, put paid to that. If the argument is that the clause is needed because the ICB might have to share data with, for example, care providers or social workers carrying out assessments, that needs to be made clear, and it would be permissible. But, as drawn, it is far too brief.
The amendment from the noble Lord, Lord Hunt, at least protects the personal data of patients. It is very straightforward and provides the protection that every doctor, nurse and patient would expect. So I hope the Minister will say today that he is happy to accept the amendment. If he is not, please will he agree to a meeting with those who have spoken in this debate,  and invite the GMC and the BMA? If progress is not made on this, I will lay an amendment on Report and am likely to press it to a Division.

Lord Lexden: My Lords, the noble Baroness, Lady Harris of Richmond, is also taking part remotely and I invite her to speak.

Baroness Harris of Richmond: My Lords, having spoken on just about every police Bill in this House for the past 23 years, I am afraid that I could not let this amendment pass without comment. I refer your Lordships to my policing interests in the register.
As my noble friend Lady Brinton has just said, the Police, Crime, Sentencing and Courts Bill, which has just gone through this House, had provisions that gave the police and other criminal justice bodies investigating possible serious violence, or plans to produce serious violence, the power to demand the confidential medical data of individuals. As drafted, unspecified police officers —that means any police officer, not just a senior ranking officer—could make requests to a GP’s surgery or a CCG, or their staff, to hand over the data.
What I found chilling was that the police would not be required to explain to the patient’s GP why they wanted the information, or whether the patient concerned was a potential criminal or possible victim—or even someone associated with the investigation, for example a possible witness or family member. After discussions with Peers, the General Medical Council, Ministers and the British Medical Association, the Government made their own amendments, making it clear that the police would not have this universal access to patient data. Instead, they would have to use the current, traditional method of approaching a patient’s GP directly and asking for the data, with the decision being made by the GP under the GMC code of ethics, as my noble friend Lady Brinton explained.
New Section 14Z61 gives the new integrated commissioning boards a duty to hand over personal medical data to a wide range of bodies that request them. However, I will focus on paragraphs (g) and (h), which are about police requests for data when they are undertaking criminal investigations. It is even more extraordinary that a health Bill is proposing to give the police even wider powers than in the recent police Bill. At least that Bill originally limited access to cases of serious violence. I will quote my noble friend from 25 October 2021, in debate on the Police, Crime, Sentencing and Courts Bill:
“It is quite extraordinary that this Bill proposes that any Home Secretary can, at will, demand that doctors and other healthcare professionals breach patient confidentiality, over and above their responsibilities of confidentiality to their patients and their commitments to their regulatory body.”—[Official Report, 25/10/21; col. 551.]
This Bill proposes giving police those powers for any criminal investigation. It is absolutely wrong. I refer your Lordships to recent police cases of sexual assault, where we know they have also trawled victims’ telephones and computer data for any information they can find. Would these clauses allow similar fishing expeditions on their private and confidential medical  data? Would they also apply to those who might be loosely associated with potential criminals? What about family members? Is it intended that their data be similarly trawled? Where does this end? This entire clause breaches an individual’s right to their medical data being kept confidential, other than in exceptional circumstances. It removes the power from the individual’s GP to make such a decision in exceptional circumstances. Worse, it enables commissioning staff and directors at an ICB to be required to hand over data to the police without the knowledge of the GP. It is totally unacceptable, and I entirely support this amendment.

Lord Clement-Jones: My Lords, I support the amendment in the name of the noble Lord, Lord Hunt, to which I have added my name. He is not the only one to be concerned about this part of the Bill. My noble friends Lady Brinton and Lady Harris have delivered powerful support and a demonstration of why we have to be absolutely vigilant about access to, and sharing of, personal data, as they were so successfully on the police Bill. We must not repeat those experiences.
We will talk further and more comprehensively about data later in Committee. In the meantime, Amendment 145, as the noble Lord, Lord Hunt, explained, tries to illicit from Government their intention behind these disclosure powers for ICBs in new Section 14Z61 in Clause 20 with regard to information, whether personal data is involved and what the safeguards are. New Section 14Z61 sets out the provisions whereby
“An integrated care board may disclose information obtained by it”
in the exercise of its power. As the noble Lord, Lord Hunt, said, the catch-all condition in new Section 14Z61(1)(f) under which disclosure can be made
“for the purposes of facilitating the exercise of any of the integrated board’s functions”
seems remarkably open-ended. My noble friends have also pointed out the sheer width of paragraphs (e), (g) and (h), which go even further than those originally proposed in the police Bill and raise crucial questions for the Minister to answer.
Amendment 145 aims to ensure that an ICB cannot disclose information where this is patients’ personal data. In my last intervention on the group headed by Amendment 26, I, like the noble Lord, Lord Hunt, expressed my support for the NHS’s digital transformation programme. It is clear, as the noble Lord says, that there is great potential growth in new technologies using data such as AI and machine learning. However, there is an absolute imperative to have the right safeguards in place in relation to duties and data. This is very much aligned with transparency in public information and engagement, particularly in this context. Transparency, choice and consent are crucial, as the noble Lord, Lord Hunt, says.
We have all looked forward to the Goldacre review, but I am not convinced that it will range wide enough and cover the governance arrangements needed to preserve and enhance public trust in the sharing and use of health data, but we will see. I look forward to the debate towards the end of Committee when we discuss the wider aspects of the Bill, when we will produce further illustrations of the rather cavalier way  in which the Government, the department and the NHS have treated personal data. Not least of these is what has been called the attempted GP data grab of last year. In the meantime, I hope the Minister will be able to give assurances that the powers in Section 14Z61 will be very limited.

Baroness Finlay of Llandaff: My Lords, from the perspective of a clinician, I support this amendment very strongly. If it is not adopted, I can see it being imperative, in any doctor’s consultation, to warn the patient that their data could be accessible and to be very careful about what is recorded in the clinical record. Very often, patients come to see a doctor, possibly at a very early stage of slightly disordered thinking or because they have undertaken a potentially high-risk activity, often in the sexual domain, and are worried that they may have contracted some condition or other. If you inhibit that ability to see a doctor early, you will further drive people into whatever condition is beginning to emerge, so it will not be known about until later. That applies particularly in mental health, where early intervention might prevent a condition from escalating.
I can see that, without an amendment such as the one proposed by the noble Lord, Lord Hunt of Kings Heath, every clinical consultation will have to be conducted with extreme caution, because of potential access to data.

Lord Bethell: My Lords, I an enormously grateful for this debate, because this clause and related clauses are critical both to achieving the digital transformation aims of the NHS, referred to by the noble Lord, Lord Clement-Jones, and to getting the healthcare system to work better together.
I am also grateful for the humanity and testimony of several noble Lords, exemplified by the noble Baroness, Lady Finlay, who spoke movingly about the practicalities of patients going to see their doctors. I know from my own life and from my family how important it is to protect those relationships.
That is why I would like to hear a little from the Minister about what protections there are, because health data is and should be treated as a special category of data. What additional protections are there in the use of health data, including in the common law duty of confidentiality, the role of the National Data Guardian, the way the Caldicott principles will be used and the national data opt-out? What reassurances do we have that those special considerations will apply to this clause and its related components?

Baroness Thornton: My Lords, I agree with my noble friend Lord Hunt and those speakers who expressed their concern about the open-endedness of what is in the Bill at the moment and the lack of protection for patient data. I look forward to the Minister’s reply on this.

Baroness Chisholm of Owlpen: My Lords, I am grateful to the noble Lord, Lord Hunt, particularly for his brief and, as always when he speaks, his clear understanding of the amendment. It makes it so much easier for us to know where the noble Lord is coming from.
I am grateful to all other noble Lords who spoke on this issue, and I understand the interest in the integrated care boards’ power to disclose information that is personal data. As the noble Lord, Lord Hunt, mentioned, public trust is essential in this and individuals’ data will be used lawfully and with respect, and held securely with the right safeguards in place. It will need to be proportionate, transparent and subject to individuals’ rights to access and correct information in use.
Let me further explain how we will make sure this happens. I assure noble Lords that the clause already restricts integrated care boards’ powers to disclose information by limiting these to the specific circumstances set out in the clause. Further, all use of personal data is subject to data protection legislation, including the UK general data protection regulation and the Data Protection Act 2018. This legislation provides several key protections and safeguards for the use of an individual’s data, including strict rules and key data-protection principles for the sharing of personal data.
Under the UK GDPR, health data has to be treated as a special category. This data requires additional protections due to its obvious sensitivity. For this type of data to be lawfully processed, a further condition must be met, in addition to identifying a lawful basis, as set out in the GDPR and the Data Protection Act.
This data protection legislation applies to the use of all personal data and provides robust safeguards in relation to information and disclosure. Importantly, there are additional protections on the use of health data, including the common-law duty of confidentiality, along with the role of the National Data Guardian, who advises and challenges the health and care system to help ensure that the public’s confidential information is safeguarded securely and used properly. As the noble Lord, Lord Hunt, mentioned, there are also the Caldicott principles; there are seven of these, which I am sure noble Lords are aware of, so I will not go through them all now. They provide guidance to health and care organisations on the use of confidential information. Along with this, there is also the national data opt-out.
I remind the Committee that new Section 14Z61 will apply, which provides when an ICB may disclose information obtained by it in the exercising of its functions. I emphasise that maintaining trust that healthcare data is being used properly is paramount. Individuals’ data will be used lawfully and with respect, held securely and have the right safeguards in place. None of the changes we are making will remove the duties of organisations to comply with the requirement of data protection legislation. Along with that, we are working with the Home Office to ensure that the protection and confidentiality of patient information is upheld within the Police, Crime, Sentencing and Courts Bill. Appropriate safeguards are in place and the Bill makes it clear that information can be shared only in accordance with data protection laws.
I am concerned that this amendment could cut across the different pieces of relevant legislation, preventing the ICB from effectively discharging its functions where it may be necessary to disclose information, which may include personal patient data. This would include investigating complaints, making safeguarding referrals for patients whose welfare is at risk, complying with  court orders and assisting criminal investigations. It would also risk a confusing data-sharing system, with different rules applying to different organisations.
I know that my noble friend the Minister, the noble Lord, Lord Kamall, has agreed to talk about this further with the noble Lords, Lord Hunt and Lord Clement-Jones. He wants to meet civil liberties organisations, along with them, to discuss this subject further. However, I regret that the Government cannot accept this amendment. I hope that I have given the noble Lord some reassurance and that he will feel able to withdraw the amendment.

Lord Hunt of Kings Heath: My Lords, I am of course grateful to the noble Baroness but I am not sure that she has entirely dealt with the concerns expressed. Because the noble Baroness, Lady Brinton, referred a lot to the GMC, I should just say that, although I am a member of its board, I am not acting here on behalf of the GMC at all.
The noble Lord, Lord Clement-Jones, and I signed the amendment and we both start from the basis of supporting digital transformation in the NHS, but we have always seen that it has to go hand in hand with the safeguards. That is why this debate is so important. We have heard powerful interventions from the noble Baronesses, Lady Brinton and Lady Harris, about why the police Bill had to be amended in relation to police access to patient information. The noble Baroness, Lady Finlay, referred to the issues for clinicians if they did not feel that the integrity of the patient confidentiality system was sufficiently safeguarded.
The Minister has basically said that we need not worry, because the NHS will only deal with information lawfully, and she went through some of the protections, including the fact that in the Bill there are conditions before the integrated care board can release the information. She referred to the data protection legislation, the GDPR, the special category given to health data about patients and the Caldicott principles. She went on to say essentially that my amendment would cause problems, because it would get in the way of legitimate information being given by the ICB, which might have an impact on patient care quality.
I do not pretend that my amendment is perfect in any way; I have always seen it as a probing amendment. But my concerns remain, and the contrast between the conditions put into the police Bill as compared with the health Bill seem, on the face of it, puzzling and need to be explored further. The Minister has kindly offered me a meeting. I hope that the noble Baronesses, Lady Brinton and Lady Harris, and perhaps the noble Baroness, Lady Finlay, could also be invited, because they clearly have insights into this. But I am grateful for the offer of the meeting. Obviously we will want to return to this on Report. In the meantime, I beg leave to withdraw the amendment.
Amendment 145 withdrawn.
Clause 20 agreed.
Amendment 146 not moved.

  
Clause 21: Integrated care partnerships and strategies

Amendment 147

Lord Hunt of Kings Heath: Moved by Lord Hunt of Kings Heath
147: Clause 21, page 29, line 19, at end insert—“(ba) members appointed by each of the local medical, dental, pharmaceutical and optical Committees, and”Member’s explanatory statementThis amendment would ensure that primary care professions would have mandated roles within Integrated Care Partnerships with a member appointed by each of the practitioner committees.

Lord Hunt of Kings Heath: My Lords, Amendment 147 concerns the establishment of integrated care partnerships. Although the amendment is specifically about the membership of ICPs, I think that it is appropriate that I comment more generally on ICPs and their role. As I see it, the proposals on integrated care partnerships can be seen as an attempt to try to bind the NHS more closely into a wider system that delivers much wider services contributing to care and well-being.
Particularly at issue is the relationship between the NHS and its partner local authorities. If there is to be a genuine generational shift in thinking that moves the NHS from being a sickness service to one that contributes to the overall well-being of the public, that must be welcomed. Of course, there is a lot to do. At the heart of the issue must be who decides how the money is spent. Who sets the priorities and allocates funding down to place or to service line? If it is just the NHS itself through integrated care boards, that will not work. We have to widen the decision-making to ensure that other voices are heard.
What is missing is some assurance that integrated care partnerships are to have some focus not just on wider well-being but on the need to reduce inequalities and to leverage maximum social value for the area covered. Here, the skeletal nature of the Bill once again gives rise to many more questions than it answers. How are integrated care partnerships to be performance-managed? Will there be an executive? Where will the funding come from? Can the ICP actually deliver any services? Could ICPs be the hub for shared services across the NHS and local authorities?
We have so far heard very little about ICPs; there has been much more emphasis on integrated care boards. Many noble Lords have remarked that the Bill is too focused on the NHS. It is clear that, so far, much energy has been put into the establishment of ICBs and much less into the establishment of integrated care partnerships, which are due to be set up jointly between the NHS and the relevant local authority or authorities. That shows that the building blocks are flawed, because essentially local authorities should have been equal partners in the establishment of integrated care boards. If this was really an integrated Bill about the NHS and adult social care, surely local authorities would be equal partners with the integrated care partnerships on the integrated care boards.
I do not want to go over old ground, but the very fact that NHS England is excluding local authority councillors from the integrated care boards means  that it does not want a serious NHS contribution on ICBs from local authorities. I can only take that as the reason for wanting to exclude local authority councillors.
Finally, I will make a general comment about ICPs. The noble Lord, Lord Lansley, raised this earlier. I fail to understand why health and well-being boards are continuing in parallel with the integrated care partnerships. I hope that we might at some stage get an explanation.
That brings me to my amendment. I have concerns about the neglect of primary care and I think that local representative committees have been an important part of the NHS since its foundation. I see no reason why they cannot be assured of some kind of presence on the new integrated care partnerships.
We had a very good debate last week, led by the noble Lord, Lord Crisp, on the role of primary care generally in these arrangements. The Minister said that it was important to consult the relevant primary care local representative committees, and that was why there was a provision under new Section 14Z52 to introduce a duty to consult anyone the ICB and its partner trusts considered appropriate when preparing the forward plan. But underlying my amendment is a concern expressed by the noble Lord, Lord Warner, who on Thursday asked whether the Minister was aware that the influence on key decision-making in the NHS was diminishing for primary care in general and GPs in particular.
In response, the Minister was clearly sympathetic to making sure that primary care was better represented and not dominated by acute trusts. He said that he was open to further discussions in this area and I hope that he will extend those discussions to the membership of ICPs as much as integrated care boards.
The Minister may say that ICP membership is best left to the local level, but I do not think that that is sufficient. We are fully entitled to agree the framework of the new arrangements. Primary care is at risk of being marginalised and that cannot be left to local discretion. I beg to move.

Baroness Walmsley: My Lords, as the noble Lord, Lord Hunt, said, Clause 21 is about representation on the integrated care partnerships, and new Section 116ZA specifies who should be on the committee of the partnership. The Bill currently specifies that one member of the ICP should be appointed by the ICB and one by each of the local authorities. The partnership is also free to appoint others. My Amendment 148 requires that one of these additional members must have responsibility for public health—and in that I include public mental health—and one must demonstrate that he or she can represent local voluntary organisations.
It is tempting in a Bill such as this to assume that all the members of these very influential committees should be from the major health organisations or local authorities in the area. However, there are many small community organisations run by charities or not-for-profit groups that play a very valuable role in providing services to local communities in a very cost-effective manner. Unless they are represented at ICP level, it is quite possible that their survival will be threatened by the new arrangements—and we heard in previous debates that they already do feel threatened. I am sure that the Government do not want that.
Similarly, public health has a major role to play in addressing many of the preventable diseases that contribute to health inequalities—and it looks after the tracing of communicative diseases. We saw the value of that recently when it was a great deal more effective than the national test and trace service at tracing the contacts of Covid-positive patients.
So, the work of both groups is very cost effective. If the ICB and the ICP are to use their resources efficiently and fulfil their duties to level up health inequalities, it is important that both groups are represented on the integrated care partnership. I echo the comments from the noble Lord, Lord Hunt: the Bill is quiet on the structure of and representation on the integrated health partnership. Given the duties that it is being asked to perform, it is perfectly reasonable for us to suggest that some of those important duties are properly covered in representation.

Lord Davies of Brixton: My Lords, in speaking in support of my Amendment 150, the issue is simple. We have much to learn about ICPs; I associate myself with the remarks of my noble friend Lord Hunt.
My proposal is that the rules determining the membership of ICPs should be consistent with the rules for membership of ICBs. As the Committee will be aware, it has been agreed, with the amendment made in the House of Commons, that ICBs will not and cannot be controlled by the private sector, in any way. I believe that the Health Minister, Edward Argar, made the point of principle clear when speaking during the Commons Report stage. He said that
“ICBs will not and cannot be controlled in any way by the private sector, as NHS-accountable bodies guided by the NHS constitution and with NHS values at their heart.”
Let us just remind ourselves that the requirement added by the Government to Schedule 2 is that an ICB’s constitution “must prohibit” a candidate being appointed to it if the person making the appointment considers, in the Government’s words in the amendment,
“that the appointment could reasonably be regarded as undermining the independence of the health service because of the candidate’s involvement with the private healthcare sector or otherwise.”—[Official Report, Commons, 22/11/21; cols. 119-61.]
We might not agree with the wording adopted by the Government, as previously discussed, but the principle is accepted on all sides.
So, as with ICBs, we should have a parallel provision for ICPs. In this, I am simply following what the Minister said in relation to ICBs: he wanted
“to put the matter even further beyond doubt.”—[Official Report, Commons, 22/11/21; col. 116.]
I emphasise “even further”. The debate here is not really about the precise wording of any amendment; it is about the principle of extending to ICPs the same protection that, as has already been agreed, should be extended to ICBs.
I look forward to the Minister’s reply. It is possible that, given the way in which ICPs are appointed—on the one hand, by ICBs, which are already protected by the Government’s amendment to Schedule 2, and on the other hand, by local authorities—it might be suggested that the issue simply does not arise and that protection is already there. However, if only to put the matter even further beyond doubt, why not accept my amendment?

Baroness Thornton: My Lords, my noble friend Lord Hunt and the noble Baroness, Lady Walmsley, started what I hoped was going to be a discussion about ICPs.
My first question is this: who was consulted on the structure, membership and role of ICPs? This question has hung over all our debates from the beginning. The Minister has said several times that this is what the NHS wants—well, which bit of the NHS? Who was consulted? As far as we can see, in the role proposed in the Bill, it is not at all clear who was consulted on how ICPs should operate. Indeed, in a previous debate, we asked how this will work with the role of health and well-being boards. That has still not been answered. It is not at all clear why both things are needed; that is the first point. My noble friend Lord Hunt is right that, at the moment, the Bill raises more questions than it answers.
In particular, the idea that local councillors cannot be members is ridiculous and slightly offensive, because the role of the ICPs is to discuss strategy and local health infrastructure and delivery. Their role is absolutely vital.

Lord Hunt of Kings Heath: My noble friend raises a very important point, because councillors can presumably go on integrated care partnerships and health and well-being boards but cannot go on the integrated care boards—but one of their officers can. What is the logic? Can my noble friend help me? So far the Government have given no answer whatever as to why. I know I am going on about this, but it is a fundamental issue: why are local authority councillors not seen as core partners on integrated care? It makes a mockery of the integration. There is no integration: they are setting up two separate boards. I do not know why they are not setting up one integrated board to cover the NHS and the partnership. It defies understanding. Why have they come up with this complicated arrangement and are continuing with health and well-being boards? Can my noble friend help me?

Baroness Thornton: I certainly cannot help my noble friend, but I live in hope that the Minister can. It smacks of a fix. The Minister might not be prepared to say on the Floor of the House what exactly the fix was between the various bits of NHS England and various bits and other parts of the machinery. I suspect that the noble Lord, Lord Lansley, might know better than the rest of us what that fix was.
I will comment on my noble friend Lord Davies’s amendment. The problem with it is that, as the ICPs are proposed in the Bill at the moment, they will not be spending any money or commissioning services. It is also important that they include the various important parts of our local health delivery systems, including pharmacists, dentists, GPs, social enterprises and the voluntary sector. As I read it, this amendment would exclude hospices, for example—which would be a ridiculous thing to do. So my noble friend might want to rethink that amendment, because it does not necessarily serve the intended interests of the ICPs.

Lord Kamall: I thank all noble Lords, especially the noble Lord, Lord Hunt, for the points they have raised. ICPs will play an important role in co-ordinating  services, planning in a way that improves population health and reduces inequalities between different groups. It is right that we consider the best conditions for their success. I was asked where the idea for ICPs came from. It originated from the Local Government Association. We have had extensive consultation with both the LGA and NHS England. To be clear, councillors can sit on ICPs.

Baroness Thornton: Is that the fix: that councillors are not allowed to sit on the ICBs, where the money is spent, but they are allowed to sit on the ICPs? That is not acceptable to me.

Lord Kamall: I do not see it as a fix. The consultation was much wider than just NHS England. In November 2020, NHS England ran a public consultation on the structure of ICSs, including NHS staff, patients and members of the public.

Baroness Walmsley: May I ask the Minister whether councillors were consulted?

Lord Kamall: I do not know for certain, but I am sure their views would have been heard via the Local Government Association.

Baroness Chisholm of Owlpen: They were.

Lord Kamall: They were. Good. I got the answer just in time.
I will turn to Amendment 147, which would mandate a role for a member drawn from each area of primary care. With all amendments relating to the ICP membership, we want to be careful to give space for local areas to find a model of membership that works best for them. As the noble Lord, Lord Stevens of Birmingham, raised at Second Reading, it is right that in a country as large and diverse as ours, one size will not fit all. Therefore, it is right that local areas should be able to determine the model and membership that best represent their area.
We fully expect primary care professionals to be involved in the work of ICPs. Each partnership will need to involve a wide range of organisations and representatives from across the system, including professionals from primary medical, dental, pharmaceutical and optical backgrounds as they prepare their strategy. The department has published a draft list of representatives for ICPs to consider involving, which includes clinical and professional experts, including those from medical, dental, pharmaceutical and ophthalmic settings. The mechanism of how this is done will be down to local discretion. For example, one ICP may wish to formally appoint certain members, whereas a neighbouring ICP may wish to have an extensive range of consultees, and a third may decide to invite primary care representatives to join a subcommittee instead. We believe it is right that local areas are able to determine the model of partnership that best works for them, and this amendment would prevent that from happening.
A similar argument applies to Amendment 148. While we welcome the contribution of directors of public health and the voluntary, charity and social  enterprise sector, I do think that we risk limiting the flexibility of ICPs. We expect public health experts to play a significant role, especially given their role in developing the joint strategic needs assessments that are crucial to guiding all planning, and their role in supporting, informing and guiding approaches to population health management.
Similarly, we expect appropriate representation from the voluntary, charity and social enterprise sectors, which will be able to contribute in respect of a number of different interests and perspectives. A number of noble Lords have spoken very eloquently about the reasons we should involve these sectors. We believe it would not be prudent, for example, to suggest that it may be appropriate for only one person to represent the local voluntary sector on a partnership, given the diversity of their involvement in health and social care.
I turn to Amendment 150, tabled by the noble Lord, Lord Davies of Brixton, and I also thank the noble Baroness, Lady Thornton, for her advice on that. I appreciate that the noble Lord might want to prevent anyone who works for, represents, or has a financial interest in a private health and care company, from being a member of an ICP. However, I would draw the noble Lord’s attention specifically to the recent experience of coronavirus, which showed that independent and voluntary providers were a vital part of the health and care picture. This amendment could exclude a significant part of the health and care sector, as the noble Baroness, Lady Thornton, rightly said. Given their scale and the central role they play, adult social care providers in particular would be potentially useful members of an ICP. It also risks leaving out, for example, dentists, pharmacists, opticians and many others working in primary care, and doctors other than GPs who work both in the NHS and privately.
We expect every ICP to have robust measures to ensure that formal conflicts of interest are managed carefully and transparently. It is also important to note that ICPs, as the noble Baroness, Lady Thornton, says, are not commissioners, and so will not be making decisions on the allocation of funds. Fundamentally, the ICP is working solely for the interests of people in the area. The experience of the health and well-being boards is helpful here, as they have similar flexibility in membership, and there have not been significant issues with conflicts of interest as they have developed their plans. We really expect the ICP strategy to be rooted in the people and communities they serve, and to be directly informed by the health and well-being boards and the joint strategic needs assessments. We are refreshing the health and well-being boards’ guidance to ensure that there are strong foundations in place at neighbourhood levels that the ICP can consult and build on.
Having said this, I thank noble Lords for their contributions on this important matter. However, as I have explained, we believe that these amendments run contrary to the principles of flexibility and subsidiarity that the Bill is based on, and therefore I hope that noble Lords will not press them.

Lord Hunt of Kings Heath: I am grateful to the Minister. First, I thank my noble friend Lord Davies for his amendment. I think, notwithstanding what the Minister said about some of the technical  details, the principle that he put forward is absolutely right: clearly, the consistency with ICBs that he mentioned is really important. I am also very sympathetic with the noble Baroness, Lady Walmsley, and her amendment on the importance of public health and voluntary organisations.
We come here to the principle that some of us continue to be puzzled by the architecture we see before us. The Minister says that this was consulted on and the Local Government Association is fine and dandy about it but, with respect, that is not sufficient in terms of your Lordships and the rigour and scrutiny that we need to put into this legislation. Frankly, as my noble friend Lady Thornton suggests, it looks much more like a fix between representative institutions to preserve the current arrangements as much as possible.
I remain somewhat confused about the structure. The Minister said that health and well-being boards will feed into ICPs, but why? Think about what he said about the role of integrated care partnerships; it sounded to me like the role of the health and well-being boards. I just do not understand the differences. I understand that, in some parts of the country where the ICP will cover a lot of local authorities, there is an argument that you should continue with health and well-being boards at the local level, but I do not see why they cannot be sub-committees of the integrated care partnerships; the Minister referred to that. Why on earth do we in Birmingham need a health and well-being board as well as an ICP? I simply do not understand it.
If the Minister believes that this should all be set out at the local level, why can people decide locally not to have a health and well-being board? He may say, “Ah no, you need a framework”. Our argument is that you need a framework in relation to membership as well. The compromise here might be to set out in legislation, as we will want to do, certain conditions around local governance and then leave it up to the local level. In relation to ICPs, however, we cannot leave it as it is. Having said that, I beg leave to withdraw my amendment.
Amendment 147 withdrawn.
Amendments 148 to 153 not moved.

Amendment 154

Lord Farmer: Moved by Lord Farmer
154: Clause 21, page 30, line 1, leave out “may” and insert “must”Member’s explanatory statementThis amendment and others to Clause 21 and Schedule 4 in the name of Lord Farmer would specify that integrated care partnerships consider how to integrate family help services into the provision of health and social care services, as relationships are recognised by research as a 'health asset'. ‘Family help’ is defined in accordance with the Independent Care Review’s starting definition. ‘Family hubs’ are named as key potential sites for delivering integrated paediatric health and family help.

Lord Farmer: My Lords, I will speak to all four amendments in this group in my name. I remind the Committee that I have already declared my interests, especially as regards integrated care and family hubs.
In Committee in the other place, the Minister, my honourable friend Edward Argar, recognised
“that the system has been calling for two different and important types of integration: integration within and across the NHS to deliver healthcare services within a defined locality, and integration between the NHS and local government and wider partners.”
He went on to say:
“The ICP is intended to bring together health, social care and public health to develop a strategy to address the needs of the area also covered by the integrated care board. If”—
I emphasise “if”—
“the ICP wants to go further, it can also involve representatives from the wider system, where appropriate, such as voluntary and community groups, and social care or housing providers. That will be up to the ICP, and we will welcome locally driven innovation to reflect local circumstances.”—[Official Report, Commons, Health and Care Bill Committee, 16/9/21; col. 332.]
I, too, welcome locally driven innovation to reflect local circumstances, as I will emphasise shortly. However, I am genuinely mystified as to why integration between the NHS and local government and wider partners is voluntaristic in the Bill. My Amendment 154 would exchange “may” for “must” and require integrated care partnerships to include in their strategy a statement of how health-related services could be more closely integrated with health and social care.
My Amendment 155 would specify “family help” as a required subset of health-related services, access to which would include through family hubs. This wording avoids prescribing hubs as the sole means of delivery of and access to services. That said, I have been talking to seasoned health leaders in the Newcastle area who say that the current system is simply not working for vulnerable families. Parents need help navigating what is out there; the community-based access point of a family hub would be a game-changer. The Supporting Families programme, appropriately based in the Department for Levelling Up, Housing and Communities, recommends hubs in its systems guide for this reason. Moreover, the Government have invested significantly—around £130 million to 2024-25 —to develop this badly needed infrastructure and fulfil their 2019 manifesto promise to
“champion Family Hubs to serve vulnerable families with the intensive, integrated support they need to care for children—from the early years and throughout their lives.”
The second action area in the DHSC’s The Best Start for Life strategy ensures that families have access to the support they need through a welcoming family hub. As I have already said in this Committee, as well as perinatal and early years healthcare, local authorities in Essex are delivering more extensive paediatric health services to meet the same need for co-ordination identified in Newcastle. Continence, speech and language, and allergy services, among others, are provided in community settings close to families through their integrated family hubs.
Many such health needs are psychosocial and practical. Addressing them needs a whole-family approach, often through early help commissioned by local authorities. This is what integration should look like. I have always insisted that the design of these family hubs should be flexibly and locally determined, not centrally imposed. but flexibility must be geared towards meeting families’ and children’s needs. One key lesson from children’s centres was that health should be fully integrated from the start.
How that is done should be locally decided, including through consultation with local people. Also, the hub is not the place where everything happens—that would need a vast building—but it is the place through which families can access everything. Other government departments are joining up, integrating their policy goals with those of health, by actively citing the delivery of their priorities in and through family hubs. I could give many examples but, for the sake of time, I will limit myself to a couple.
The Department for Work and Pensions is keen to run its reducing parental conflict programme in family hubs, making access to couple relationship support far easier and less stigmatising for low-income families. The Ministry of Justice is funding a pilot family hub in Bournemouth, which will include a specialist family justice programme that links closely to the family court. Separating parents will be encouraged, early in the process, to use the family hub rather than go down a costly and adversarial court route.
The lack of community-based support is one of the reasons why the promise of the 1989 Children Act has not yet been fully realised, as many pointed out in publications to mark its recent 30-year anniversary. I will return to this. I need to keep emphasising that family help, particularly with relationships, is not at all niche but is erroneously treated as such, hence the need for it to be specified in the Bill. The social determinants of health have already been referred to by other noble Lords, and family-level factors in particular can make or break clinical efforts by healthcare professionals. The US Centers for Disease Control and Prevention says that children need “safe, stable, nurturing relationships” to thrive, and UK research, including from UCL, recognises healthy, well-functioning relationships as a “health asset”.
With my Amendments 158 and 167, “family help” in the Bill would mean
“services which improve children’s lives through supporting the family unit and strengthening family relationships to enable children to thrive and keep families together”.
I quote, but in a heavily truncated form, the independent care review’s starting definition, which can be read in its entirety in lead reviewer Josh MacAlister’s The Case for Change. He teases apart how this phrase differs from “family support” in local authority usage, and refers back to Professor Eileen Munro’s 2011 social work reform recommendations and the 2003 and 2009 reviews by the noble Lord, Lord Laming. Both emphasise the need for easily accessible, early help for families if outcomes for children are to improve markedly and tragedies are to be averted in more cases.
I would go even further back than that. In the earliest days of the welfare state, it was recognised that poor family functioning threatens the effectiveness of its other pillars. The ability of health, education and state financial support for families to transform the life chances of children is fundamentally undermined if parents fail to nurture their children emotionally and materially. In 1949, in acknowledgement of this uncomfortable truth, Michael Young, one of the architects of the welfare state, called for child welfare centres. These would, he said, fulfil Beveridge’s principle of the preservation of parental responsibility and deal with the emotional cost to children of high post-war levels of family breakdown.
These began to emerge as family centres in the 1980s. Many were opened by voluntary organisations such as the National Children’s Home, now Action for Children, and many had significant local authority and social services involvement. They helped parents of children of all ages, mainly in disadvantaged areas, ideally before and to prevent the involvement of social services. Family centres were included in legislation—symbolically, given today’s Bill—as part of the then Department of Health and Social Security’s contribution to the Children Act 1989. As family help was a health emphasis in that landmark law, a health Bill is a highly appropriate updating vehicle.
As an aside, in 1994, the National Audit Office, then the Audit Commission, proposed a central role for family centres in developing a more proactive partnership with parents. The commission reported that Section 27 of the 1989 Children Act—the duty to co-operate—was still not progressing well, and emphasised the need for a single point of entry to a range of multiagency support services. Plus ça change, plus c’est la même chose. We can wait until family hubs spread slowly across the country before acknowledging the need for them in legislation, or we can update the Children Act by making it reflect more accurately where more than 30 years of policy-making since then have brought us to.
There is an argument that family hubs are as yet untested, hence the Government funding rollout in only 75 local authorities. However, as I said, the principles that they are based on rest on decades of learning about what families need. We can, and must, refine the model, but hubs—somewhere families can go where someone will be able to help—are a vital missing pillar of our welfare state. I believe that, in time, they will be as indispensable as primary care and schools, because they make such a valuable contribution to their successful functioning.
As it currently stands, the Children Act 1989 is out of date in how it refers to family help in infrastructure. Paragraph 9 of Schedule 2 states that local authorities
“shall provide such family centres as they consider appropriate in relation to children within their area.”
The name “family centres” is too suggestive of a single building, while the phrase “family hub” expresses that this is an access point. It is descriptive, not prescriptive. Many family hubs refer to themselves as children’s centres. Others, such as those in Doncaster, want to shift the culture away from an exclusive focus on the early years, so they do call themselves family hubs.
Moreover, other aspects of paragraph 9 are inappropriate now. Paragraph (c), for example, refers to the family centre being a place where someone will be provided with accommodation while receiving advice, guidance or counselling. That does not happen, hence my rewording to reflect better what the hubs actually do without being overdeterminative. Local needs decided, as I said, in consultation with those who will use them, as well as in the context of integrated care partnership discussions, must be the priority.
Finally, it is with humility that I propose amending the Children Act 1989. Internationally, it is highly respected and much copied. However, the intention of my amendments is to fulfil its key principles: the emphasis on prevention, on keeping children with  their families wherever possible and on ensuring that help is available for parents who struggle to nurture their children or provide a safe and stable environment in which they can thrive. I commend these amendments to the Committee.

Baroness Tyler of Enfield: My Lords, I lend my voice to this important group of amendments. I will explain very briefly why family hubs are so important to many of the big themes that we have been discussing in the Bill so far: prevention, early help and integration in particular.
Family hubs have a very important role to play in improving early intervention services and helping with integration and data sharing, as we discussed earlier, among public services and the voluntary sector. Importantly, as the noble Lord, Lord Farmer, explained, the range of services available in family hubs often includes important services such as children’s health services, which are better delivered in a community setting and integrated with other family health services, rather than delivered in a hospital or somewhere that has a much greater focus on acute care.
The Public Services Committee, on which I served until very recently, produced what I thought was a very important report on vulnerable children recently. It put a national rollout of family hubs at the very core of a national strategy for child vulnerability, proposing that the most deprived communities be prioritised in the early stages of any such expansion. In our report, we set out what fundamental characteristics we thought should be at the heart of every family hub, including employing full-time family co-ordinators, offering addiction and domestic violence services, providing support for parents with poor mental health and organising parenting classes. I say that, because I hope that it illustrates the point I made about integration between health services and broader family support services.
I had the privilege as a committee member—I think the noble Lord, Lord Hunt, was with me—to visit Westminster family hub. I sat down and talked to a young mother with two young children who had a lot of very difficult issues that they were dealing with. The mother explained how the help and support she was getting through the family hub, both with her health issues and those of her children, as well as a wider range of issues, were helping her to keep her head above water. I was so impressed with that family hub and the help and support it was giving, and the way it was integrating statutory services and the voluntary sector.
I will make two other brief but important points. First, family hubs will be working with children from birth to 19. I see that as important, because families face challenges at any time, not just when children are very young, and focusing solely on early years and not helping families with older children does not have the same sort of holistic approach. So it is extremely helpful if, during early years, families build up these trusted relationships with people they meet in family support hubs of the type I have described, rather than sever that relationship when the child reaches the age of five. Parents can continue to contact a familiar team and access that trusted source of information and advice.
My final point to emphasise is the importance of family relationships and relationship support. One key thing about family hubs that is very important is the work they do to prioritise help with relationships—it might be couple relationships, parent-child relationships or even sibling relationships. By being able to deliver counselling and various other programmes to address some of the conflict and breakdown that often affects families in these difficult situations, they often help avoid the whole family reaching crisis point, particularly to the extent that parents have to access the courts to resolve disputes. For all these reasons, I very much support the amendments.

Baroness Wyld: My Lords, I support my noble friend Lord Farmer. I declare my interest as a non-executive member of the board of Ofsted. I apologise for not being able to speak at Second Reading for my own family reasons. I echo everything that the noble Baroness, Lady Tyler, said. It was a real pleasure to serve with her on the Public Services Committee.
I will praise the Government first, which is always wise. They are showing great commitment to family hubs and I believe that they are committed to the rollout. What concerned me when the committee took evidence from certain members of the Government was a sense of a lack of urgency. Everybody agreed that this was a brilliant idea, but different people from different departments had different ideas about how they should work.
We also took evidence from families, in private and in public. The stories we heard over and again were, as others have alluded to, that, “This could have been prevented if it had been addressed in a joined-up way”. We particularly heard from young children, “I had to tell my story over and again.” Imagine the trauma. This could have been prevented under a different model. These situations did not have to happen.
We have the building blocks to make sure that these situations do not happen, but I do not think the legislative framework is in place to help us to address that. For that reason, I am persuaded by my noble friend Lord Farmer and I am happy to support his amendment.

Lord Mawson: My Lords, I am very supportive of what the noble Lord, Lord Farmer, said. My colleagues and I have been in this space for 37 years and we have built rather a lot of things in it. It has been very interesting to watch what happened in east London, when this new scheme from a new Government arrived in the middle of a group of communities that already had well-established relationships with very vulnerable families, with a whole range of opportunities emerging. I am sure it was unintentional—it is part of the danger of being overinfluenced by the idea that local authorities will sort this stuff out in the same old usual way that they have tried to before—but it was very disruptive for the social enterprise sector, which was already doing this stuff very effectively, with all the numbers to show it. I will not go into the detail now, but when you look at the detail of what actually happened, the present facilities cost £100,000 more than those being delivered by the social enterprise sector.
These ideas are really important. I am happy to take the noble Lord into this in a lot more detail. I encourage him to spend more time in the detail in some real places to look at the unintended consequences of what happens when new government programmes arrive in communities, with the best will in the world, with an overconfidence in what they think the state can deliver. I am very happy to have a further conversation with the noble Lord, but the detail of the long-term relationships with these families really matters.

Lord Warner: My Lords, briefly, I support these amendments, partly from my own experience as a director of social services and Children’s Commissioner, but also because of the points that the noble Lord, Lord Mawson, raised.
I have three key points from history. As a director of social services in the 1980s and 1990s, I offloaded my local authority family centres to the voluntary sector because a survey of parents suggested that they would not come to a service run by the organisation that was likely to take away their children. That was a perfectly rational position and we should listen to what people say about that.
Fast forward to 1999 and parenting orders under the Crime and Disorder Act. We find that compulsion brought parents to the party but, when they actually attended, they found—not so much men but women—that they were being treated and given skills that enabled them to manage children, largely teenage children, much better than they had been. It was a great shame that we used the criminal justice system to bring people to a parenting tuition experience that they should have been given many years before.
This is a final point from history. Michael Gove made me—this was madness on my part, as well as his—children’s commissioner for the failing Birmingham City Council children’s services. Ofsted report after Ofsted report had been telling them of their deficiencies. We found that the group they could not handle, for which they had no effective responses, was teenagers. If we are to make any progress in helping people to help the family unit, we need to address the support given to parents during the teenage years, because they are really struggling, particularly mums.

Lord Bethell: My Lords, I will briefly say that I am extremely optimistic about family hubs. They answer the challenge to solve the complexity around integration incredibly well. My noble friend Lord Farmer made the point that one cannot think of a better example of what integration looks like than family hubs. The noble Baroness, Lady Tyler, talked clearly and persuasively about the journey they have been on.
My noble friend has made the case for these amendments. Other noble Lords have made the case for updating the legislative framework. I ask the Minister to look carefully at what can be done to bring these laws up to date so that family hubs can thrive, as I believe they will.

Baroness Merron: My Lords, I am grateful to the noble Lord, Lord Farmer, for introducing this important debate and to other noble Lords who have  supported the amendments before us and spoken about how we can improve the support that families will receive through this Bill. As the Family Hubs Network rightly observes,
“prevention is simply listed in the Bill as one of several commissioning requirements of ICBs with no broad mention of children’s health”.
This group of amendments gives us the opportunity to sharpen this.
As we have heard, the issues that families face, in whatever form or shape, do not exist in isolation. In addition to the impact of financial, housing, social and other pressures, the physical and mental health of a child or young person affects the physical and mental health of not just their parents, but their wider family, and vice versa. It makes common sense to facilitate a healthcare system that is designed and resourced to actively take a holistic approach to the many issues that face children and those who care for them.
I cannot help but feel that the points raised today are not new. We have the experience of Sure Start to show us how effective properly integrated family services can be. As the Institute for Fiscal Studies confirmed:
“By bringing together a wide range of early years services for children under 5, Sure Start centres dramatically improved children’s health even through their teenage years.”
Early investment is crucial.
I hope the Minister will be keen to embed change in this Bill to replicate the success that we saw through Sure Start. The first step towards doing this is to make sure that integrated care partnerships are properly required to consider how family help services can be thoroughly integrated into our health and care system, so that family members—no matter what form those families take—are seen as both individuals and groups who have an effect on each other.

Lord Kamall: I thank my noble friend Lord Farmer and all noble Lords who spoke about their experiences. The creation of integrated care boards represents a huge opportunity to support and improve the planning and provision of services to make sure that they are more joined up and better meet the needs of infants, children and young people.
Before I go into the specific amendments, I make it quite clear, as my noble friend said, that the Government set out in their manifesto a commitment to championing family hubs. We want to see them across the country, but at the same time we must give democratically elected councils the choice to shape how services are delivered, bearing in mind some of the points made by the noble Lords, Lord Mawson and Lord Warner, whom I thank for their experience on this.
The Government agree that it is vital to ensure that ICPs work closely with a range of organisations and services to consider the whole needs of a family when providing health and care support. In preparing the integrated care strategy, the integrated care partnership must involve local Healthwatch and the people who live or work in the area. We are working with NHS England and NHS Improvement on bespoke draft guidance, which will set out the measures that ICBs and ICPs should take to ensure they deliver for babies, children and young people. This will cover services that my noble friend considers part of family help.
In addition, the independent review of children’s social care is still considering its definition of “family help”, and the definition published in The Case for Change may well be further refined as a result of ongoing consultation. It would be inappropriate to define the term in legislation at this stage, pre-empting the full findings of the review and the Government’s response to it. Also, it is important that there should be a degree of local determination as to what should be included in the strategies of ICBs and ICPs. In order for them to deliver for their local populations, a permissive approach is critical.
On Amendment 167, we agree that family hubs are a wonderful innovation in service organisation and delivery for families. The great thing about them is how they emerged organically from local councils over the last decade. I pay tribute to my noble friend for the key role he has played in advocating family hubs and bringing this innovation to the heart of government. The Government strongly support and champion the move but we are clear that they have to be effective and successful—they need to be able to adapt to local needs and circumstances. They also need to be able to operate affordably, making use of a diverse range of local and central funding streams.
In both these regards, local democratically elected councils should hold the ultimate decision-making power over whether to adopt a family hub model and how it should function. As such, I regret that we cannot support the amendment, which would place too much prescription on the decisions and actions of local authorities and risk imposing significant new financial burdens. For this reason, I ask my noble friend to consider withdrawing his amendment.

Lord Farmer: My Lords, I thank the Minister for his rather disappointing reply and those who supported these amendments, particularly the noble Baroness, Lady Tyler, and my noble friend Lady Wyld, for giving such clear definition to the services and the advantages of family hubs. I take to heart the advice from the noble Lord, Lord Mawson, about unintended consequences. I would quite happily talk to him about this. I also take the point from the noble Lord, Lord Warner, that it is nought to 19, not nought to five. Families have so many problems with teenagers, as we see on the streets today, and family hubs can be a non-stigmatising place where help can be got.
I agree with the noble Baroness, Lady Merron, about Sure Start. In a way, I have always said that family hubs are building on Labour’s Sure Start centres. However, it is not nought to five but nought to 19—in fact, nought to 25 for children who come out of the care system, et cetera, with special needs.
There might be concern that my amendments attempt inappropriately to set in concrete the policy of family hubs when it is constantly progressing. However, the changes I have described are not just about bringing the latest policy idea into the Bill. Absent of these references to places where families know that they can access help and be connected to the full gamut of local services and support, the Bill will not reflect the overarching direction of travel. Their inclusion requires health to be fully on board, which has not happened in the past, to the detriment of the success of previous policies.
My amendments represent unfinished business from the founding of the welfare state. The family help that they mandate is also essential to the success of the levelling-up agenda and the build back better agenda, which is what this Government will be judged on. I hope that I might be able to speak further with the Minister before Report but, in the meantime, I beg leave to withdraw my amendment.
Amendment 154 withdrawn.
Amendments 155 to 159 not moved.
Clause 21 agreed.

  
Clause 22: NHS England’s financial responsibilities

Amendment 159A

Lord Mawson: Moved by Lord Mawson
159A: Clause 22, page 32, line 29, at end insert—“223CZA Financial duties of NHS England: the principle of subsidiarity(1) NHS England must exercise its functions in accordance with the principle of subsidiarity, and must promote the principle throughout the integrated care system in particular by ensuring that integrated care boards observe the principle.(2) The principle of subsidiarity is that responsibility for deciding how and where to use resources is as far as possible to be delegated to local areas in order to meet local needs and to promote local groups working collaboratively.(3) In doing so, the process and timing of procurement should take account of the benefits of long-term relationships and stable partnerships in delivering sustainable integrated solutions to local health issues.”

Lord Mawson: My Lords, I have listened carefully to the debate taking place in Committee over the last few weeks with great interest and noted the growing consensus that now exists across this Chamber for transformation and change. These debates have shown the House at its best. It is clear that the Government now have before them an opportunity to transform not only the NHS, its culture and its ways of working but the public sector, much of which is not fit for purpose in this century. People inside and outside these systems know this—listen to those who are leaving for early retirement.
As well as listening, I have been talking to colleagues around the country: those inside the NHS systems; those responsible for the development of the ICSs; and those outside who seek to transform the health and care world and who wish to partner with these systems. I will share a few concerns that I have heard, because they relate to my two amendments, Amendment 159A and 210A.
First, colleagues both inside and outside NHS systems have heard fine words from Governments before about change and transformation in health and care, but they are sceptical. They know that the Civil Service and government systems and mindsets are not fully fit for purpose. The Civil Service’s culture and mindset need to transform; it needs to get interested in what is happening among young entrepreneurs in Bradford,  for example. The voluntary and social enterprise sectors need the Government to go beyond fine words and deal with, for example, the situation that my colleagues at the Bromley by Bow Centre have to deal with every day as they navigate—as the noble Baroness, Lady Cumberlege, mentioned last week—41 different funding streams coming up the silos from the Treasury, at enormous cost and wastage of time, as they try to deliver integrated services. If we are to build a more integrated health and care programme, these practical issues are going to get worse—not just in east London but across the country—unless we address this now.
Many years ago, we had a secondee from the Treasury in Bromley who told us how all tax revenue was paid into one bank account. How much does it cost to then spread this out across 41 government departments and programmes, only for it all to be brought back together to address the multiple, complex and interlocking issues that somewhere like Bromley by Bow faces? How much cost does all this add? No one knows. Is it 20%, 30% or more? No wonder we have a productivity crises.
The Single Regeneration Budget programme was an early attempt, some years ago now, by the Civil Service and the Government to bring funding streams together. What lessons have been learned in government and the Treasury from it? I suspect there is no memory of this programme in the system.
There is also a danger of the NHS and public sector culture imposing itself on the voluntary and social enterprise sectors, as they try to innovate and generate new ways of working—what I call putting old men in new clothes. I have seen this in the housing association movement, which I was involved with in the very early days, and in what happened to children’s centres, which were launched in Bromley-by-Bow by a Labour Government, which then unwittingly undermined our integrated model and ways of working with local families.
My colleagues in parts of the country can already see the NHS centrally trying to impose its old processes on them as they innovate, at the very moment there needs to be a two-way street and real learning taking place. The centre needs to learn from the micro, from the innovation platforms we have created, not impose its outdated systems on them. Government needs now to show a clear resolve to transform the culture of the NHS or people will become even more cynical. The whole system and culture desperately needs change, and the way into this is via the micro and practical details.
Yes, it will take time, but first we must be clear about why we are taking these initial early steps and where we are trying to get to. There is a real danger of our Civil Service systems unwittingly deepening poor-quality outcomes and a dependency culture. The centre should see these innovation platforms as a place that can teach the centre, not the other way around. I declare my interests here. We need new behaviours from NHS England, not last-minute processes that want everything tomorrow. The macro needs to learn from the micro; the whole system needs to return to first principles and create an environment which encourages healthy communities.
Levelling up is surely about addressing the UK’s productivity gap, especially in marginalised communities, and one way of doing that is via a healthy and thriving  population. It is also the only way to stop the NHS taking an ever-greater percentage of the UK’s GDP. I suggest health is now everybody’s business.
My two amendments fit within this mindset and suggest some first steps that could be taken along this road. Let me now deal with my first amendment, Amendment 159A. True subsidiarity cannot be achieved without delegation of resources and the authority to allocate in a way which will achieve the intended and agreed objectives. For example, systems may wish to ensure that discretionary local services such as community centres, community transport, struggling family support and meals on wheels should be prioritised and sustained ahead of further spend on health capacity, given their key role in supporting ongoing independence and social cohesion and preventing the need for health services.
Place systems may choose to pool delegated resources in order to commission collaborative services at scale, where they jointly agree that they are not best placed to provide such services, and such discussions are already taking place in mature systems. For example, in north-west Surrey we have agreed to jointly commission dermatology services across two place systems. The point is that delegation to place does not work against the development of services at a wider scale where that is appropriate, but the recognition of this needs to come from the place level.
True transformation—true to the spirit of the Bill and the long-term plan and to achieving the intended benefits of integration—cannot be achieved without the freedom to invest those resources in a way which can unlock long-term benefits. This may require speculative investment in some cases, as well as investment in preventive services which do not offer rapid returns but are essential to maintaining the ongoing sustainability of services. We would not expect any of this to be done without due diligence on the capability of place-based partnerships and appropriate levels of holding to account for achievement of improvements and results. The ICS will have a key role in not only ensuring that funds are delegated appropriately but supporting place-based systems to build the capability to manage delegated funds effectively.
We need to make leaps in how health services are now delivered through integrated services and offers to populations, by thinking radically about who can support people best, and in what way, to keep them healthy, look after them at home where possible and provide services which understand people as individuals and meet their needs holistically.
This degree of change in public health, prevention and provision of services needs innovative and broad-based collaborations and partnerships between organisations—health organisations, local authority organisations, VCSE and business—tailored to fit the needs of the place. These relationships are not quick to build; they take time and effort. The work takes years and the impact can be seen only through long-term relationships and stable partnerships. For this to succeed, the ICS will need to embrace the principle of subsidiarity, delegating meaningful responsibilities and accompanying budgetary responsibility to place level. This may mean that standard procurement cycles and processes do  not immediately bring the outcomes that the Bill envisages. More innovative processes and timings may be needed to ensure that the benefits brought through long-term relationships and stable partnerships are given time to be achieved.
Let me now deal with Amendment 210A. In general, NHS bodies do not currently make best use of their local voluntary community, social enterprise and faith sectors when procuring services to achieve key health outcomes, especially in prevention and early intervention services. This is all well understood but, somehow, we never seem to get beyond one-off experiments or short-term, time-limited initiatives. By contrast, the best local authorities have been procuring and partnering with their VCFS for many years, though this has become more difficult with recent funding pressures. There is an opportunity, therefore, for health colleagues to learn from their local authority colleagues in the ICS on best practice in this regard.
With NHS vacancy rates at their highest levels, together with waiting lists for treatment, now is the time to take a whole-system approach and look more collaboratively across the local community. There is also a strong value-for-money argument. Simply waiting for people to become seriously ill, which is what is happening in practice at the moment with regard to many mental health services—but not by design—and could equally be applied to services for struggling families, leads to very poor outcomes and is very expensive. Using VCFS organisations and others, with a combination of staff and local volunteers to create a coherent health-oriented rather than illness-oriented approach, will pay dividends, but only if there is real intention and focus over a sustained period of time. This is a long-term play, not a quick win, but vital none the less.
Traditional models are not working for the groups which can offer most value. Local charities and social enterprises tend to be funded on a hand-to-mouth basis using grants, so most cannot permanently invest in their services. This is despite a huge growth in charitable giving from the public, directed in the main at the NHS.
In north-west Surrey, we are looking at how we can give similar prominence to local charities supporting areas of deprivation and communities in need, but more needs to be done to enable charities and voluntary sector groups to be assured of ongoing funding to provide core services. Keeping such VCS groups active is essential to achieve insight into the needs of communities. There are innovative approaches such as Tribe, a platform developed by a technology business- person, Richard Howells, simply because he had become so frustrated by the inabilities of the NHS and care services to deal with his own mother’s care needs. Richard did not write a research paper; he created a practical solution, which is pretty impressive. When he shared this practical solution with the NHS centrally, there was a lot of interest and fine words but, in actual detail, no follow through.
We now need to allow these insights at the most granular level to inform the commissioning and targeting of services. Without this, we will not be able effectively to respond to specific areas of inequality or health  risks, leading to ill health and pressure on services. The existing models of voluntary sector support need to be developed to enable and promote micro- enterprise creation on a far greater scale. This both protects the quality of services and enables individuals to gain training, support and income. It has the potential to open up a currently untapped resource of care support, which is critical in places such as north-west Surrey, where community care staff vacancies run at around 40%.
Employment and volunteering are themselves key determinants of well-being. Place-based systems will wish to use their spending power to leverage this benefit and invest directly in local employment, where it can be demonstrated to be the most effective use of resources. In north-west Surrey, we have achieved a virtuous cycle of supporting furloughed airline workers during lockdown through recruiting them into the hospital workforce, supporting the delivery of services and well-being of clinical staff, and reducing the risk of those individuals developing physical or mental health problems through inactivity and stress.
I can see that I am being told that I am running out of time, but I need to share two final things about the digital world. I am sorry about this, but I think it is important.
Richard Howells, who I have mentioned, is a successful data engineering entrepreneur, who, as I said, found it hard to arrange care for his elderly mother. I suggest that the Government need to action the NHS to look in detail at what Richard Howells is doing. His project has recently been awarded £23 million in funding from UK Research and Innovation. A second data platform has been developed by Amir Hussain of Yeme Architects in Bradford. It uses the internet to get people off internally focused social media platforms and brings them together in communities to do things.
I tabled these amendments and have put this on the record because they are about the detail and practicality. The opportunity is there for transformation, but the worry out in our communities is: will this Government, like others before them, be serious about transformation or will it be about old men in new clothes?

Lord Duncan of Springbank: I now call the noble Lord, Lord Howarth of Newport, who will be taking part remotely.

Lord Howarth of Newport: My Lords, I support the spirit of these amendments. The noble Lord, Lord Mawson, in his working life at Bromley-by-Bow and more recently in north-west Surrey, and in his very full speech, has demonstrated the significance to healthcare of the principle of subsidiarity, the freedom to innovate and the mobilisation of community resources. If ICSs are to mobilise the full power of place this must indeed be a governing principle.
Although there might be definitional issues to clarify, I particularly applaud the ambition expressed in Amendment 159A that resources should be used at local discretion to promote collaboration by local groups, and that the procurement processes should  take account of the benefits of stable partnerships. How could anyone dissent from that? Yet, the experience of so many non-clinical and VCSE organisations is of chronic financial instability and of promising work being aborted because of policy discontinuity.
I will give one instance of damaging discontinuity of funding. The Alchemy Project used dance as a form of early intervention in psychosis. The project was developed jointly by Dance United, South London and Maudsley, and King’s College London. Two cohorts of participants were drawn from young people in south London boroughs where the rate of psychosis is very high. With no previous experience of dance, after four weeks they performed a specially commissioned piece at the Shaw Theatre and Sadler’s Wells. Academic evaluation demonstrated clinically significant improvements in well-being, communication, concentration and focus, trust in others and team working. The project helped participants to develop relationships with their peers and restore relationships with their families. The Alchemy Project had to be abandoned, however, when a fragile consortium of funders did not renew its funding. ICBs and ICPs will need to be less fickle and less prodigal, bolder in supporting innovation, and more consistent and farsighted in their relationships with their providers and communities.

Baroness Cumberlege: My Lords, I also support these amendments. Earlier in Committee, I described the noble Lord, Lord Mawson, as
“a man of infinite resource and sagacity, an entrepreneur and … a great achiever”.—[Official Report, 18/1/22; col. 1575.]
I am sure that, if noble Lords are not convinced, these amendments will further endorse my description.
I now add that the noble Lord is a very determined reformer. He has told us how the present systems serving the public are not fit for purpose. The Government are trying through this Bill to remedy that through greater integration and other measures. It was Edmund Burke who said that, if you want to preserve something important, you need to be prepared to reform it. Our systems are important and need reforming.
Amendment 159A is about the financial duties of the NHS in England and solidarity. In the previous debate, I mentioned Bromley by Bow, as the noble Lords, Lord Mawson and Lord Howarth, said. Bromley by Bow was the forerunner of other imaginative, ground-breaking and huge entrepreneurial schemes in the north of England, London and Surrey. The examples are breathtaking but they cost energy, hard work, original thinking and money. It is sad that these scarce resources are dissipated by the convoluted systems that we, the nation and the Government impose on burgeoning and, at the beginning, fragile schemes. However, Bromley by Bow is not one of these. It is well established but not secure due to having to navigate 41 different funding schemes, as the noble Lord, Lord Mawson, said. Huge effort and wasted time are spent trying to integrate these schemes for the use of a single neighbourhood centre.
I strongly support Amendment 210A. The noble Lord is right: he paints a compelling picture of the future, which will be realised only if our public health, prevention and provision of services collaborate in  partnership with local organisations. They understand the history, dynamics and strengths that permeate their local place—their neighbourhood. The noble Lord is also right that, to thrive, ICSs will have to embrace the principle of solidarity, which is the essence of a successful project; that includes the financial duties of NHS England.
I have lived in my community from the age of five. In another debate, I said that my father, a GP, knew his patients inside and out. I, too, know my villagers inside and out in a different way. I treasure the relationships I have made with local organisations. We fight for every shop and organisation that is threatened. We welcome newcomers. We have produced a pocket list of 45 organisations with a mantra on the front saying, “Newick”—my village—“is here for you”. It goes on to say that there is so much going on in our village and there is something for everyone, whether you would like a new hobby, to make new friends or just give something back to the community. Get active, get involved and get happy.
I strongly support Amendment 210A, which urges local providers in particular to be prioritised. I certainly support that. This is not about get-rich-quick developers, who have no regard for the nature of the community in which they are going to build, building bricks and mortar. In our village, we fight for employment, which is absolutely critical in local communities. It reduces traffic problems and helps to mitigate global warming. Above all, it goes some way to generating happy communities. It generates the Government’s intention to make place an important component of a stable community. Surely that is what we all want.

Baroness Thornton: My Lords, we on these Benches said everything we needed to say on this matter in support of the noble Lord, Lord Mawson, when we had the substantial debate. I do not know when it was—last week, I think. These two amendments flow from that. We probably could have taken them then, but I am sure that the Minister will have useful things to say.

Earl Howe: My Lords, we return to the very important theme of subsidiarity, to which the noble Lord, Lord Mawson, has brought us in both his amendments and his powerful speech, born of his immense experience in the real world.
I will begin with Amendment 159A, if I may. One of the main reasons for introducing this Bill was to ensure that existing collaboration and partnership working across the NHS, local authorities and other partners was built on and strengthened. This relates especially to the framing and monitoring of assessments and strategies. We intend for these assessments and strategies to be a central part of the decision-making of ICBs and local authorities. That is why we are extending an existing duty to ICBs and local authorities to have regard to the relevant local assessments and strategies. Furthermore, the integrated care board and local authorities will both be directly involved in the production of these strategies and assessments through their involvement with both the integrated care partnership and the health and well-being boards. As a result, they have a clear interest in the smooth working of the ICP.
More widely, there are already several mechanisms to ensure that ICBs and local authorities will have regard to the assessments and strategies being developed in their areas. First, health and well-being boards have the right to be consulted by ICBs and give NHS England and ICBs their opinion on whether the joint forward plans take account of the joint local health and well-being strategy. Likewise, as part of its annual assessment of ICBs, NHS England must consult each health and well-being board on how well the ICBs have implemented the relevant joint local health and well-being strategies.
There are what one might call insurance policies embedded in these arrangements. Each ICB must also include in its annual report a review of the steps it has taken to implement any relevant joint local health and well-being strategy. It must also consult the health and well-being board when undertaking that review. Finally, NHS England has formal powers of intervention if an ICB is not complying with its duties in any regard. Putting all this together, we think that it is sufficient to ensure that ICBs will have regard to both ICP and health and well-being board plans.
The emphasis is on collaboration. Implicit in that concept is the two-way street on the sharing of ideas and exemplars that the noble Lord, Lord Mawson, called for and illustrated in his examples. Given the strong collaborative measures in the Bill and the strong foundations of collaborative and partnership working across the NHS, local authorities and other partners on which this Bill is built, we do not think that further provision is required. We would expect an ICP to resolve disagreements through discussion and joint working rather than additional, potentially burdensome procedures.
Amendment 210A brings us once again to the role of non-statutory organisations in helping to create and sustain healthy communities. I want to stress straightaway that the Government hugely value the contributions of the voluntary, community and social enterprise sectors to the health and well-being of the nation. We recognise their important role in supporting the health and care system.
The Government fully expect that commissioners will also recognise this contribution and role going forward. This role will be particularly important in efforts to recover performance and move beyond a purely reactive service to building a sustainable and personalised health and care system, something the non-statutory sector is uniquely placed to offer. I think the lessons learned, so well described by the noble Lord, Lord Warner, in the previous set of amendments, are widely accepted nowadays.
NHS England and NHS Improvement recently published the proposed ICS Implementation Guidance on Partnerships with the Voluntary, Community and Social Enterprise Sector, which outlines the importance of the VCSE sector as a key strategic partner for ICBs and provides proposed guidance on how VCSE partnerships should be embedded once the new system is in place.
Membership of the ICP is flexible, as we have previously discussed, and could well include organisations from the voluntary, community and social enterprise  sector. We expect many will. The integrated care partnership will be tasked with developing a strategy to address the health, social care and public health needs of its system, which will be another important way to bring the voluntary, community and social enterprise sector in. That is why I am confident in saying to the noble Lord, Lord Mawson, that I do not think this amendment is necessary.
It is our intention that the provider selection regime will allow commissioners greater flexibility to arrange services in a way that adds value for the patient, taxpayer and local population. One of the predominant aims of the provider selection regime is to allow commissioners and providers greater certainty and continuity of service provision to improve partnerships between providers, reduce disruption and promote sustainable long-term and integrated collaborations between providers from across the system.
As part of NHS England’s consultation and development of the provider selection regime proposals, it set out suggested key criteria for decision-making which a relevant authority would need to take into account. We intend to include them in the new regime. They will include, among other things, the importance of innovation, social value, the sustainability of services, access to healthcare and reducing inequalities.
More broadly, we recognise the importance of places. We expect each integrated care board to agree its place-based structures as part of the process of agreeing its constitution. The integrated care board will also have to work closely with health and well-being boards as they have the experience as place-based planners. The integrated care board will be required to have regard to their assessments and strategies.
This has been a helpful debate on an important matter. I hope I have been able to reassure noble Lords that we are already taking a sensible approach in the provisions in the Bill and that making amendments to it is not necessary. I therefore hope the noble Lord, Lord Mawson, will feel able to withdraw his Amendment 159A and not to move Amendment 210A when it is reached.

Lord Mawson: My Lords, I thank the Minister for those helpful thoughts and reflections. First, on NHS England, we need to be very sure that a two-way street is established, because I worry that systems such as this are not learning organisations—we know this from experience—and they now need to become such if they are really to embrace an environment that is about innovation and more entrepreneurial activity. I put that on the record. We will watch what happens; I am sharing with noble Lords what is actually happening now, live, in some of these services around the country as they try to establish new ways of working.
I pass on apologies from the noble Baroness, Lady Andrews, and the noble Lord, Lord Clement-Jones. They have supported these amendments but, because of the change in the timetable, were not able to be with us today. This debate is being watched around the country, and I am aware of a very interesting dialogue going on with people both inside and outside the system. We should all be encouraged by that and should build on it.
With regard to the Report stage and to these two amendments and my earlier amendment, my colleagues and I, with others in the system, will reflect on these discussions. We will, I hope, talk further with the Minister and other colleagues and think about what the next steps might be. For now, I beg leave to withdraw my amendment.
Amendment 159A withdrawn.
Clause 22 agreed.
Amendment 160 not moved.
Clauses 23 to 25 agreed.

  
Clause 26: Care Quality Commission reviews etc of integrated care system
  

Amendments 161 and 162 not moved.

Baroness Chisholm of Owlpen: My Lords, if my noble friend Lord Lansley agrees, this might be a good moment to stop for lunch, rather than him having to start and stop perhaps mid-speech on his amendment.
House resumed.
Sitting suspended.

UEFA Euro 2020 Final
 - Question

Lord Bassam of Brighton: To ask Her Majesty’s Government what progress they have made with football authorities towards addressing the (1) safety, and (2) security, implications of the report by Baroness Casey of Blackstone An independent Review of events surrounding the UEFA Euro 2020 Final ‘Euro Sunday’ at Wembley, published on 3 December 2021.

Lord Parkinson of Whitley Bay: My Lords, I begin by putting on record again our appreciation of the sterling work of the noble Baroness, Lady Casey of Blackstock, on this review. The Government recognise the critical importance of the safety and security implications of her report. We are now working with relevant parties, including the police and the football authorities, to consider not only those implications but the report’s recommendations in full. We are committed to ensuring that the UK continues its world-leading reputation for holding safe and successful major international sporting events.

Lord Bassam of Brighton: My Lords, the noble Baroness, Lady Casey, described the crowd events at Wembley’s Euro final as a “near miss” for fatalities and life-changing injuries and said that we need a  national conversation about kicking racism and hooliganism out of football. Can the Minister tell us what plans the Government have for taking forward her six recommendations in full to improve safety, security and behaviour at football matches? Why did the Government not use the recent opportunity of a police Bill to incorporate new tailgating and drug-disorderly football banning orders, and to create a new offence of endangering public safety, as the report recommended?

Lord Parkinson of Whitley Bay: My Lords, we acknowledge that the review shows that these events were foreseeable, but they were unprecedented. As in the previous exchange we had on this, it is important to underline that the blame lies squarely with the minority of supporters who caused the disorder and aimed to spoil the day for everybody else. It is clear that in future, we must ensure that the safety and security arrangements for an event such as this are in line with its national significance. The review was commissioned by the FA, so the Government do not intend to respond formally as the Government; the key thing is taking action. We are working with partners to ensure that we learn from it and that the recommendations are appropriately implemented. I pay tribute to the noble Lord for his recommendations on the online abuse of footballers, which were taken forward in the police Bill.

Lord Addington: My Lords, will the Government go a little further on their attitude to some of the recommendations in the report, predominantly that the stewards—the people inside provided by football to look after its own—were insufficient in number and not properly trained for this event? Could not the Government take this forward with the police to ensure that we have security at such events and do not overload our police forces?

Lord Parkinson of Whitley Bay: As I said, we are working with the police on the implications of the noble Baroness’s report. Work is also being undertaken by the Sports Grounds Safety Authority to gather evidence on stewarding. Once that is concluded, the Government will work with it and other relevant parties to see how the findings are applicable not just to football but across the events industry.

Lord Cunningham of Felling: My Lords, this event brought shame and disgrace on our country as a whole, as well interfering with the championship game. The Minister mentioned the involvement of the police. How close have the police so far got to identifying who was behind this event? You do not produce 6,000 people storming a national football stadium very easily, so someone must have organised it. Are the police pursuing that line of interest?

Lord Parkinson of Whitley Bay: My Lords, the noble Lord is right that some of the actions that we saw on 11 July were shameful. The report is clear that the responsibility for the reckless and criminal behaviour lies with the shameful individuals who perpetrated it. The police have made 39 arrests and the  investigations are continuing. I am afraid I cannot give more of an update on those police inquiries beyond that, but action is being taken by the police in this matter.

Lord McLoughlin: My Lords, in the discussions that the Government are having with the football authorities, could they also have one with the EFL about the appalling way it seems to be communicating its attitude towards the future of Derby County Football Club, which was one of the founding members of the Football League? The EFL seems to be deliberately withholding information. Perhaps one way out of this would be to make it subject to the Freedom of Information Act.

Lord Parkinson of Whitley Bay: My Lords, the Government continue to engage closely with the EFL about Derby County. Ultimately it is for the EFL, the administrator and the club to resolve the issues that remain in order to ensure the survival of the club, but the Government have urged pragmatism from all parties to find a solution. Everyone wants to see one of the founding members of the Football League continue this season and beyond under appropriate ownership, and openness and transparency are a key part of that.

Lord Faulkner of Worcester: My Lords, the Minister will recall that on 6 December he answered a Private Notice Question on the excellent report by the noble Baroness, Lady Casey, when I declared my interest as vice-president of the charity Level Playing Field. Particular recommendations were made in respect of disabled supporters, disabled access to the stadium and the disgraceful way in which thugs effectively overran them. Would he be willing to meet representatives of Level Playing Field—the chairman, the chief executive and perhaps me—to discuss what the next steps should be?

Lord Parkinson of Whitley Bay: The noble Lord is right that the way in which football fans with disabilities, their friends and those accompanying them were tailgated and exploited by people intent on doing disorder was shameful. I think a meeting with my honourable friend the Sports Minister would be more appropriate. I am sure he would be very happy to do that, and I will follow that up with the noble Lord.

Lord Laming: My Lords, I am sure the Minister agrees that the noble Baroness, Lady Casey, deserves great credit for the speed with which she produced her thorough report, which is very practical and is to be taken seriously. But, my goodness, since then it seems to those of us who have been following this that very little action has been taken on her recommendations, yet incidents continue to happen at football grounds, as has been reported in recent games. Could the Minister use his good offices to encourage the Football Association and others to address the report, not just thoroughly but with some speed?

Lord Parkinson of Whitley Bay: I am happy to echo what the noble Lord says about not only the speed but the thoroughness with which the noble Baroness undertook this work. The report’s recommendations  are extremely valuable and are being taken forward by the relevant parties. The Football Association has apologised for its role in what happened on 11 July, as is right. The Government are working with the FA, the Sports Grounds Safety Authority, the police and others to make sure that they are taking the appropriate action on the recommendations that relate to each of them.

Lord Clark of Windermere: My Lords, I declare my interest as a director of Carlisle United Football Club. When the Minister refers to working with the football authorities, will he bear in mind that on an average weekend more people attend Football League matches than attend Premier League matches? When the Government are working with the football authorities, will they constantly remind them of that fact?

Lord Parkinson of Whitley Bay: The noble Lord is right and he makes an important point. The vast majority of people who enjoy playing and watching football do so peacefully and bring great enjoyment and health benefits to themselves and those around them. It was a minority of people on 11 July who marred what should have been a very special day for football fans, not just in this country but around the world, and it is right that the blame for what happened lies squarely on them.

Lord Kennedy of Southwark: My Lords, the noble Lord, Lord McLoughlin, talked about how important it is to make sure that we save Derby County Football Club. My club is Millwall, but I have been to Derby County many times, both to the old Baseball Ground and to Pride Park. It is a fabulous club; it needs our support, and the Government need to press the Football League to save it.

Lord Parkinson of Whitley Bay: As I said, the Government continue to engage closely with the English Football League and have urged pragmatism so that a resolution can be found and that they can continue to play against Millwall and other football clubs.

Lord Londesborough: My Lords, we are seeing increasing pressure being put on match day stewards, who are paid as little as £9 per hour to control football crowds, while police presence in many grounds is decreasing. Is this the way to face off the increasing challenge of rising violence across all four divisions? Surely we need an increase in police presence. Does the Minister agree?

Lord Parkinson of Whitley Bay: The noble Baroness’s review clearly stated that many stewards showed huge bravery and courage that day. The action taken by them and by the police in difficult and unprecedented circumstances may have saved lives, so we should be grateful to them all. An unprecedented number of police were deployed to the stadium, but the noble Baroness’s report makes some important recommendations for the police, for stewards, for the FA and for others, and we are making sure that they are all taken forward, as they should be.

Electric Vehicle Charge Points
 - Question

Lord Berkeley: To ask Her Majesty’s Government why they have removed the requirement for there to be an electric vehicle charge point in all existing non-residential properties with more than 20 parking spaces; and what assessment they have made of the implications of this change for their net zero target.

Baroness Vere of Norbiton: My Lords, we believe that a more ambitious and tailored approach is needed for existing non-residential car parks. We have already progressed this policy and are currently analysing feedback from a further consultation on the future of transport regulatory review. The noble Lord asks why proposals have been removed. I am unclear as to where he feels they have been removed from.

Lord Berkeley: My Lords, I got this information from the Government’s Consultation Response: EV Charge Points in Residential and Non-residential Buildings, dated November 2021. The executive summary says:
“The Government will not introduce the proposed requirement for one charge point in all existing non-residential properties with more than 20 parking spaces.”
To me, that means that they have cancelled the need to put charging points in existing car parks. Maybe they do not think charging points are necessary; maybe we do not need electric cars. It is a bit of a confusing policy.

Baroness Vere of Norbiton: I understand why the noble Lord might have been a little confused by that sentence. It is not the case that we are not going to do it at all; rather, we are not going to do that specific proposal. The feedback we received from our original consultation back in 2019 suggested that the proposals were not ambitious enough and that details on the implementation and the impact were unclear. We agreed that perhaps we could be more ambitious. That is why we consulted again on the future of transport regulatory review, which closed on 22 November. It sought further views on this topic. Proposals in this area are absolutely still under consideration; we just want them to be as ambitious as possible.

Lord Geddes: My Lords, sequentially over the past 10 years, I have been the owner of two hybrid cars but I am anxious to buy an all-electric car. I have yet to find one that can get to and from my home in Wiltshire without having to be recharged. What plans do the Government have for installing electric charge points within the Palace of Westminster and particularly Royal Court?

Baroness Vere of Norbiton: Oh, my Lords. I am well aware that several noble Lords have repeatedly requested EV charging facilities at your Lordships’ House. The Government clearly cannot direct the  powers that be in your Lordships’ House to install a charging point, but this member of the Government is disappointed by the lack of leadership.

Lord Birt: My Lords, public charge points often do not work. There is a multiplicity of apps and payment methods; tariffs can be opaque. Does the Minister accept that EV charging needs to be as seamless as buying petrol? Will she accept that the Government must urgently bring much-needed order to our chaotic public charging system?

Baroness Vere of Norbiton: I do not quite accept that the system is chaotic. It is definitely growing and it is incredibly innovative, but that is why the Government consulted on things such as opening up public charge point data; improving the reliability about which the noble Lord speaks; streamlining payment methods, which is incredibly important; and increasing price transparency, so that people know how much they are going to be charged. We will publish the response to this consultation very soon, and we will lay legislation this year.

Baroness Randerson: My Lords, only last Saturday, I was standing in a car park trying to download yet another app, only to discover that the EV charger was not working—again. Achieving net zero requires all drivers to switch to EVs, not just those of us with space to install our own charging points. SMMT figures show that only one new public charger is being installed for every 52 new electric vehicles registered, and that ratio has been getting worse. What urgent plans do the Government have to improve this record and to ensure that charge points are properly maintained and accessible with an ordinary credit or debit card?

Baroness Vere of Norbiton: I will not repeat what I have said about the consultation. Certainly, payment and reliability will all be parts of our response to that. The noble Baroness will know that 80% of charging happens at home; the Government are therefore supporting people to put in their own chargers at home where they are able to. For those who are unable to, we are very much focused on on-street charging near homes and offices, and we are providing funding for that to happen.

Lord Flight: My Lords, I discovered to my surprise some time ago that Westminster did not charge for charging. Is there a system whereby all local authorities and providers can be organised to render appropriate charging?

Baroness Vere of Norbiton: I apologise to my noble friend—I was not aware that Westminster did not charge. That may be an anomaly and not something that can go on for ever.

Lord Watts: How difficult would it be to adapt street lights to be charging points?

Baroness Vere of Norbiton: The noble Lord is stretching my technical knowledge at this point. I am sure that those things are being considered. Obviously,  the Government are working closely with the industry on the design of charging points, because we want to make sure that they are accessible and do not obstruct the pavement—and we have seen much innovation in the area.

Lord Walney: It is good that the Minister acknowledges the problem of reliability, which is a particular issue on the motorway network. Does the suite of her responses include increasing fines for companies when their charge points are out, which is all too common? They need a greater incentive to comply.

Baroness Vere of Norbiton: That, of course, is a very serious consideration: we need to make sure that companies do not just stick up a charge point and then leave it there unmaintained and, therefore, unreliable. We will be considering all options as we respond to the consultation.

Baroness Jones of Moulsecoomb: The Minister has mentioned on-street parking and not on-pavement parking. Is any advice given to councils, because an awful lot of them put the chargers on pavements, which obviously makes life harder for pedestrians?

Baroness Vere of Norbiton: The noble Baroness raises a very important point. I do not know what guidance exists on the siting of EV chargers. I shall take that back to the department and write to the noble Baroness.

Lord Kirkhope of Harrogate: My Lords, further to the question from my noble friend Lord Geddes about these premises being non-residential and having at least 20 car parking spaces, I realise the difficulties, but I wonder—particularly given that, as the Minister will know, we are a little hard up at this end—whether in her beneficence she might be able to ask her department to assist with the financing of the necessary chargers for their Lordships.

Baroness Vere of Norbiton: I would be a little cautious about that. It may look as though the Government were feathering the nest of Parliament, and I do not think that would be a good idea.

Lord Rosser: The Competition and Markets Authority reported last July and urged the Government to intervene in the electric car charger market to prevent what it described as “charging deserts” and increase availability in locations outside London that remain underserved. As I understand it, across the UK there are huge regional inequalities in the number of available charging points. In London, there are 80 charging devices per 100,000 people, but in Yorkshire, for example, there are fewer than 20 per 100,000. What steps are the Government taking to support new charging points in areas that are currently lacking? If the answer is “not very much”, it just shows that the Government’s levelling-up slogan is just that—a slogan—and no more.

Baroness Vere of Norbiton: The Government encourage every local authority to look at its local needs. We have a fund of £20 million per year to  which 135 local authorities have already applied. That fund is there to put chargers in local areas where there are fewer publicly available chargers and there will be a local EV infrastructure fund launching soon.

Lord Bird: Will the Minister return to the argument of the noble Lord, Lord Berkeley, that this is a retrograde step? If we are talking about levelling up, we need to level up the relationship between the electric motor and the petrol engine. Will she tell us again why what the noble Lord, Lord Berkeley, says is happening and why she is saying it is not happening?

Baroness Vere of Norbiton: It is happening; it is just not happening yet, because the original proposal—

Noble Lords: Oh!

Baroness Vere of Norbiton: It will be happening! The original proposal, we felt, was not good enough; indeed, stakeholders agreed it was not good enough, so there will be proposals for existing non-residential car parks. We will consider carefully how we can make those as ambitious as possible and make sure they have the impact we want to see.

Racism in English Cricket
 - Question

Lord Mann: To ask Her Majesty’s Government what assessment they have made of the progress towards tackling racism in English cricket.

Lord Addington: My Lords, on behalf of the noble Lord, Lord Mann, and at his request, I beg leave to ask the Question standing in his name on the Order Paper.

Lord Parkinson of Whitley Bay: My Lords, the Government are clear that racism has no place in cricket, just as it has no place in any sport or in our society at large. We welcome the steps taken so far by the England and Wales Cricket Board and the new chairman of Yorkshire County Cricket Club, the noble Lord, Lord Patel of Bradford. These steps are only the beginning. We now expect to see clear and sustained evidence of cultural change across the sport resulting from them. We will continue to hold the ECB to account directly on this and reserve the right to take further measures if necessary.

Lord Addington: I thank the noble Lord for that reply. I join him in saying that the noble Lord, Lord Patel of Bradford, is really doing us all a service here in taking this on. Will the Government give us an assurance that this will not be something that sticks with cricket, but that they will look wider and make sure that all sport learns from what is found out, and also that cricket will have to learn the lessons learned  in other sports? Otherwise, we are in danger of having small reports and struggles repeating themselves over and over again.

Lord Parkinson of Whitley Bay: I certainly agree with the noble Lord about the important role being played by the noble Lord, Lord Patel of Bradford. Just as in the previous Question about football, it is a commendation of your Lordships’ House that it is from this House that work to deal with these important issues is coming. I was very glad that the noble Lord, Lord Patel, held a briefing with interested Peers on Monday, ahead of this Question, to update them on the work he is doing. He made very clear that, while his focus is on sorting out the problems in Yorkshire, he is drawing on the experiences of people from other sports, and the lessons that he is learning and the actions he is taking have implications for other sports and, indeed, other parts of society.

Lord Cunningham of Felling: My Lords, does the noble Lord have an opinion about the abysmal performance of the Middlesex chairman in front of a House of Commons committee in the last few days when he displayed all the racism that too many white people at senior levels in cricket in this country seem to adhere to?

Lord Parkinson of Whitley Bay: I agreed with Ebony Rainford-Brent who called Mr O’Farrell’s comments at the Select Committee “painful” and “outdated.” I am glad to see he has apologised for them, but I share the dismay of many in hearing them. I think it also underlines the important point that racism takes many forms: it can be a sin of commission as well as of omission. It is good if people are focusing on the barriers that might be holding people back from participating in society, but it is completely wrong to stereotype people on the basis of their race or ethnicity, and that is why it was so dismaying to hear what he said yesterday.

Lord Haselhurst: My Lords, I declare my interest as a member of Yorkshire County Cricket Club, and Middlesex, and others. Does my noble friend acknowledge that the sweeping changes that have been made at Yorkshire County Cricket Club under the direction of the noble Lord, Lord Patel, indicate the sort of measures that may have to be taken more widely in sport to ensure that potential players, spectators and lovers of sports can find a real welcome when they are involved, either as players or as members?

Lord Parkinson of Whitley Bay: Like my noble friend, I was impressed by the summary given by the noble Lord, Lord Patel of Bradford, of the work that he has undertaken since he became the chairman of Yorkshire County Cricket Club nine weeks ago. He outlined the many actions that are being taken, and I agree that these will have a wider application for other cricket clubs and other sports.

Lord Hunt of Kings Heath: My Lords, has the Minister seen the reports that many county cricket clubs charge huge amounts of money for young players  who have been identified as having particular skills to go into training programmes? He will know that there is a concern at the higher reaches of cricket that there is a dominance by pupils from public schools. Does he not think that the ECB needs to take action to make sure that these training programmes are open to everyone?

Lord Parkinson of Whitley Bay: The noble Lord, Lord Hunt, is right: there are many barriers which hold people back, and the Government are working with Sport England and other agencies to dismantle those barriers and make sure that everybody has the opportunity to participate in sport, whoever they are and wherever they come from. There is obviously work for the ECB to do, and lessons are being learnt in Yorkshire at the moment, but the noble Lord is right that these barriers go beyond matters of race.

Lord Dholakia: My Lords, Yorkshire has shown clearly how racism had affected cricket in the past and, thanks to the effort of the noble Lord, Lord Patel, that things are now improving. I would like to know what is being done in youth clubs and schools to ensure that people from diverse communities are aware that racism should not be a bar in pursuing a career in cricket?

Lord Parkinson of Whitley Bay: Over the last four years, Sport England’s investment in the ECB has focused on equality and diversity, with a commitment to fund, for instance, its south Asian action plan and its south Asian female activators project, to give just two examples of how it is encouraging people from different backgrounds to take their rightful places and reach their full potential in this sport.

Lord Faulkner of Worcester: My Lords, I declare an interest as a member of Worcestershire County Cricket Club, which has a proud record of inclusion and cultural and ethnic diversity going back over 60 years, starting with the great Basil D’Oliveira, followed by his son and this grandson, all of whom have been associated with the club. The chairman is from an ethnic minority background and his insistence on good governance and diversity is a model that other counties should follow, and the club is certainly well ahead of the ECB guidelines. Could the Government have some conversations with Mr Hira to see what Worcestershire is doing right and how others can learn from it?

Lord Parkinson of Whitley Bay: The noble Lord is right that we should point to the many happy examples of people who are getting it right and who are working very earnestly and very hard to make sure that people from all backgrounds are able to enjoy cricket, whether as players or spectators. In his capacity as president of Northamptonshire County Cricket Club, my noble friend Lord Naseby came to the briefing with the noble Lord, Lord Patel, and we are always happy to point to examples of clubs that are getting it right, and from which others can learn.

Lord Bassam of Brighton: My Lords, we have heard this afternoon a litany of responses which focus on racism, and rightly so. For our part, it is very  frustrating to see the responses of senior people in cricket, and others across the sport, who are determined to bury their heads in the sand on this issue. The announcement that Clare Connor will lead a review into dressing room culture in the men’s and women’s games is very welcome, but that must be only one part of the sport’s response. Yesterday the chair of Glamorgan County Cricket Club noted that his own club’s efforts to promote diversity were only possible after years of work to make the club financially sound. What work is the government department doing with the ECB and the clubs themselves to ensure that schemes such as those promoted by Glamorgan get off the ground and start to produce the results and make the fundamental changes that cricket needs?

Lord Parkinson of Whitley Bay: As I said, we are watching the ECB closely and reserve the right to take further action if we think that is needed. But since November, the ECB has made some structural developments for long-term cultural change, which is what we need to see, including publishing its plan for diversity and inclusion. It has also committed to forming a new anti-discrimination unit by June this year. The Independent Commission for Equity in Cricket, which was established in March 2021, has opened a call for evidence and will publish a report in the summer this year, examining all the issues relating to race and equity in cricket. We are glad to see that work is being done.

Baroness Blower: My Lords, I am sure the Minister would like to congratulate Show Racism the Red Card on taking on Monty Panesar as a patron and a very active member of that charity, working in schools to ensure that the message of anti-racism gets through. However, I feel that the Government may very well have to do more, because those remarks made by the Middlesex chairman yesterday, to which my noble friend has already referred, were utterly appalling and speak of deep-seated bigotry and bias; he clearly thought that what he said was reasonable, while I am sure everyone in this House believes that it was not.

Lord Parkinson of Whitley Bay: I am very happy to extend my congratulations to Show Racism the Red Card. There are many organisations, individuals and role models who are doing sterling work in highlighting the issues that have been faced by so many people for far too long, pointing to the way forward and making sure that people are inspired to enjoy playing or watching their preferred sport to the best of their abilities.

Ukraine: Minsk II Protocol
 - Question

Lord Truscott: To ask Her Majesty’s Government what steps they are taking (1) to ensure that all parties implement the Minsk II protocol, and (2) to defuse the tensions over Ukraine.

Lord Ahmad of Wimbledon: My Lords, the Government support the Minsk protocols to deliver peaceful resolution to the conflict in full respect of Ukrainian sovereignty and territorial integrity. We have condemned Russia’s aggressive acts and are working closely with our allies and partners to hold Russia to the commitments it signed up to freely, including the Helsinki Final Act, the Minsk protocols and the Budapest memorandum.

Lord Truscott: I thank the Minister for that reply. The problem is that Russia does not see NATO as a defensive alliance—rather, it sees it as a group of countries, some of which are openly hostile to Russia, refusing to give any security guarantees while expanding eastwards to Russia’s borders. Unfortunately, the memories of NATO’s bombings of Tripoli and Belgrade are fresh. We are facing a very different series of global threats since the Atlantic alliance was formed in 1949. President Macron talked about a new security framework for Europe; perhaps this is something Her Majesty’s Government should think about to secure lasting peace for future generations.

Lord Ahmad of Wimbledon: My Lords, as the noble Lord will be aware, NATO is a defensive alliance. It was interesting to hear in the recent Statement of my right honourable friend the Defence Secretary—this is relevant to what we are discussing—that only 1/16th of the Russian border is actually shared with a NATO country. NATO is a defensive alliance, and it remains so. It is serving its purpose. We are working in unity, because what is required now is not just unity of words —it is unity of purpose and, indeed, unity of action.

Lord Robathan: My Lords, I have just been to a meeting with the Ukrainian ambassador, where we discussed the Budapest memorandum. These were assurances given by the Russian Federation in 1994 that it would respect the sovereignty of Ukraine, which, of course, included the borders with Crimea. Putin has reneged on this. Should the international community not come together and condemn this bad faith from Putin and now the Russian Federation, and do it both at the United Nations and elsewhere?

Lord Ahmad of Wimbledon: My Lords, I agree with my noble friend that what we have seen from Russia is pure aggression. We should not forget that it is an occupying power in Crimea. We have come together; we are acting together within the context of the NATO alliance. My noble friend importantly points to discussions at the UN, and I assure him that we are engaging directly with partners but also bilaterally with Russia.

Lord Purvis of Tweed: My Lords, the Normandy format is still of great importance. Are there any British officials taking part in the talks in Paris today under the Normandy process? The Minister knows that part of the Minsk II agreement is over the area of disputed territorial lines. The Prime Minister told the House of Commons yesterday:
“I think what we need to do, if I may say so, is build up an instant, automatic package of western sanctions that will come in automatically in the event of a single toecap of a Russian incursion into more of Ukraine.”—[Official Report, Commons, 25/1/22; col. 872.]
Is there agreement among all the western powers and our allies about what qualifies as incursion? We may well be asked to legislate in haste. Therefore, it is vital to know what an incursion is.

Lord Ahmad of Wimbledon: My Lords, on sanctions, let me assure the noble Lord—I know this is of interest to all noble Lords—that we are working very closely with all our allies and partners, particularly those who have such regimes. This is not an empty threat; this is a clear sanction against Russia for any incursion it makes in terms of territorial sovereignty. On noble Lord’s first question: that is not a group the UK directly participates in. We are aware of the meeting today; it is being held at political advisers’ level, and Russia is participating. I have seen some of the detail emerging, and I would not hold out too much hope as yet.

Lord Morris of Aberavon: My Lords, as a young NATO soldier, I was occasionally in charge of the nightly train from Hanover to Berlin, to establish our rights of passage, despite Russian intransigence. Will the Government, while continuing to affirm our rights, use every diplomatic means to reduce fears of any expansion of NATO that may not have much practical importance?

Lord Ahmad of Wimbledon: My Lords, as the noble and learned Lord will know from his own experience, insight and expertise, it is for a country to make an application to NATO. NATO is a defensive alliance, and when an application is made, a procedure is followed for allowing entry to new members. On the wider point about engaging with Russia and ensuring that every diplomatic channel is open, we are doing exactly that: there is extensive diplomatic engagement at every level, including from my right honourable friend the Prime Minister, my right honourable friends the Foreign Secretary and the Defence Secretary, and other Ministers.

Baroness Stuart of Edgbaston: My Lords, if you follow on a daily basis the press reporting in both France and Germany, there is a narrative developing, that if only the United Kingdom and the US were less alarmist, the tensions could be reduced. That shows that reliable information is becoming increasingly important. I urge the Minister to look at two things: whether the BBC World Service is sufficiently covering the area; and whether those within the FCDO have the required language skills to ensure they are on top of any information that is coming out?

Lord Ahmad of Wimbledon: My Lords, on the noble Baroness’s second point, the FCDO has established language skills training for diplomats, and we engage directly, through those language skills, with countries around the world. Of course, there is always  room to do more. I will follow up the matter that she raises about the BBC and see whether more can be done, but, of course, that is directly a decision for the BBC.

Lord Balfe: My Lords, does the Minister not accept that the Minsk II agreement has not been implemented on either side, and that what we need is to get negotiations going on an open basis between Russia and Ukraine, with the help of the French and the Germans, so that we can dial down the tensions and not keep on inching towards conflict, which is going to do no good to anyone and end up with body bags being sent back to Britain?

Lord Ahmad of Wimbledon: My Lords, no one wants to see body bags. But it is for Russia—Russia is the aggressor here. A key point is Crimea: Russia is occupying, under international law, sovereign territory of another country. We should not lose sight of that. We are seeking to work with our alliances, including NATO. We are working with key partners, and I have assured noble Lords that we continue to engage directly with the Russians as well.

Lord Collins of Highbury: My Lords, the Minister refers to action required to stop Russia taking this aggressive act. On Tuesday, Boris Johnson told the House of Commons that the Government were bringing forward a register of beneficial ownership as part of their efforts to track down Russian money in this country. However, the noble Lord, Lord Agnew, who had oversight of counterfraud, revealed in his resignation letter to Boris Johnson on Monday that, in a decision apparently taken last week, the economic crime Bill has been rejected for consideration during the next parliamentary year. Who is correct? I know who I believe.

Lord Ahmad of Wimbledon: My Lords, first, I acknowledge from our side, and indeed from across the House, the valuable services of my noble friend Lord Agnew, who served this House well. I recognise the important role he has played. As someone who has great respect for my noble friend, I listened carefully to the statement he made. The issue of illicit finance is important and it is a key priority for this Government. My right honourable friend the Prime Minister has committed once again to ensuring that we weed out the fact that London is still used—I fully accept this—as a base for money laundering and illicit finance by some. We need to take further action. On the specific point about the Bill, I will refer to my colleagues at the Treasury and write to the noble Lord.

Bishop of St Albans: My Lords, it is right that we attend to the situation in Russia, but Ukraine is a deeply divided country. The situation is not helped by, for example, Ukraine’s decision three years ago to make Ukrainian the national language, precluding the involvement of some 50% of Russians in the south and east of the country, who speak only Russian. What are Her Majesty’s Government doing to bring economic development and social cohesion to try to strengthen and bolster the life of Ukraine, as it faces this threat?

Lord Ahmad of Wimbledon: The right reverend Prelate is of course correct that it is important to recognise the diversity of different communities, and indeed different people, within Ukraine. Ukraine is a partner and we are working in a very constructive way. While the focus right now is rightly on the security of Ukraine, I assure the right reverend Prelate that we have a full range of programmes, relating to both the economic empowerment of countries and communities and working with civil society. I visited Ukraine just before Christmas and saw directly, for example, how faith communities are working together. There is a lot of work still to be done, but we are working directly and constructively with Ukraine in various areas.

Arrangement of Business
 - Announcement

Lord Ashton of Hyde: My Lords, for the benefit of noble Lords who were not in the Chamber at 11 am this morning, it may be helpful if I outline the arrangements for the remainder of today. We will shortly continue proceedings on the Health and Care Bill. The House will break again at 6.45 pm for questions on a Statement on Ukraine. After the Statement, we will continue proceedings on the Bill.
We have now spent over 33 hours in Committee on this important Bill. This morning, I urged—indeed, begged—all noble Lords with an interest in the Bill to be as concise as they felt able to be in their contributions, to speak to amendments that were before the Committee and not to rehearse arguments that would be more suited to Second Reading. I noted that the Front Benches would also seek to ensure that their contributions were brief and focused, and I am grateful for their co-operation this morning.
I am pleased that the House listened—a somewhat novel experience for this Government Chief Whip—and we made excellent progress this morning. However, we still have eight groups of amendments to get through today, and I once again implore Members to ensure that the debates remain as focused and succinct as they were before the break. In this way, we can ensure that all the amendments to this important Bill receive the attention they deserve. As I said this morning, I am sure I speak for the whole House when I say that none of us wishes to debate important issues in the early hours of the morning, so it is important that we continue in the way we started this morning.

Health and Care Bill
 - Committee (6th Day) (Continued)

Baroness McIntosh of Hudnall: My Lords, the noble Baroness, Lady Brinton, will be speaking remotely in this debate. I should also alert the Committee that, should this amendment be agreed to, I will not be able to call Amendment 163 by reason of pre-emption.

Amendment 162A

Lord Lansley: Moved by Lord Lansley
162A: Clause 26, page 37, leave out lines 23 to 30Member’s explanatory statementThis amendment, along with another to this Clause, would remove the power of the Secretary of State to set, and from time to time revise, objectives and priorities for the CQC, but would require the CQC to consult the Secretary of State when it revises indicators of quality for the purposes of assessments under subsection (4).

Lord Lansley: My Lords, the purpose of Clause 26 is to introduce a process by which the Care Quality Commission inspects integrated care systems. The structure of this is the subject of my Amendments 162A and 164A. Those two amendments go together—they are not separate, but entirely linked. The purpose of Amendment 162A is to remove the process by which the Secretary of State sets objectives and priorities for the Care Quality Commission in undertaking such inspections of integrated care systems; Amendment 164A then seeks to insert a process by which the Secretary of State, and indeed others, are consulted by the Care Quality Commission over the quality indicators that it would use to assess the quality and performance of integrated care systems.
A bit of background would be helpful for noble Lords in this respect. Think back to what the Care Quality Commission’s existing statutory arrangements are in relation to reviews and performance assessments of existing bodies in the National Health Service. The structure is very straightforward. The commission is asked to set quality indicators, to consult on those and then to review against them and produce reports. I know from personal experience that the Secretary of State cannot direct the Care Quality Commission to undertake a particular review, but they can certainly make a request, and their role as steward of the whole healthcare system has certainly led Secretaries of State to do that from time to time. But the legislation does not permit the Secretary of State to direct the Care Quality Commission in how it does its job; it is an independent body corporate. There is intrinsic merit in the Care Quality Commission, as an inspectorate, operating independently. The structure of this clause in this Bill is at odds with the way in which the existing legislation is structured in the 2008 NHS Act as amended. The effect of these two amendments would be to restore the independence of the Care Quality Commission in undertaking its activities and in the way in which it goes about its job.
The Government’s drafting of the legislation is wrong anyway. There are references to objectives and priorities. The priorities are referred to in new subsection (3), inserted by Clause 26(2), which says that they
“must include priorities relating to leadership, the integration of services and the quality and safety of services.”
I have to say that this is teaching grandmothers to suck eggs. There is no way in which the Care Quality Commission is not going to incorporate such indicators of quality. We know that from the generic nature of the quality indicators that it uses generally for existing NHS bodies. The reference to setting objectives is not only novel but completely undefined. The Secretary of  State can set whatever objectives they wish to; we do not know what they are and there is no indication of what they might be. Taking out references to objectives and priorities seems to me to be a very good thing.
As it happens—I declare my own role in this—in the 2012 legislation there was previously a process by which the Secretary of State set standards for the Care Quality Commission in determining what the quality indicators should look like. We actually took that out of the 2012 legislation, precisely on these grounds: that the Care Quality Commission is, and should be, as independent as possible.
I think this clause proceeds from the mistaken apprehension that the Care Quality Commission is a part of the management process of the NHS. It is not. If the Secretary of State wishes integrated care systems to proceed in any particular way, the Secretary of State has the means to do so available via the mandate; the Government plan to add specific powers of direction; and NHS England has duties that go in exactly the same direction. The Care Quality Commission is not part of the management process for integrated care systems; it is an inspectorate. If—and this is a risk we must avoid—the Secretary of State were directly intervening to set objectives for integrated care systems to be inspected subsequently by the Care Quality Commission, whereas NHS England is itself setting objectives for integrated care systems through its responsibilities and duties, those two may come into conflict.
For all those reasons, the Government would be well advised to accept these two amendments and put the Care Quality Commission into the independent role in relation to ICSs that it, and people working in the National Health Service, would recognise as being its role. I beg to move.

Baroness Brinton: My Lords, the noble Lord, Lord Lansley, has set out the tensions underlying the Bill about returning to the Secretary of State powers over independent, arms-length bodies; specifically, in this amendment, the inspections carried out by the Care Quality Commission in its role as a regulatory body. He rightly reminded us of the current arrangements, which give the CQC the ability to set its indicators and which, frankly, work well. I will not repeat his arguments, except to say in a slightly wider context that almost every piece of legislation brought to Parliament by this Government has given Ministers more powers—including, as in Clause 26, the power to intervene and to change remits.
The noble Lord’s amendments maintain the independence that the CQC—and other regulatory bodies—need to be able to inspect and make rulings without fear of favour or influence from politicians, while ensuring that the CQC must consult the Secretary of State when it revises indicators of quality for the purposes of assessment. That seems to me to provide the requirement for the CQC and the Secretary of State to engage in dialogue, but without the political intervention outlined in Clause 26(2) and (5).
Can the Minister explain why the Government feel the need to remove the independence of the CQC—whether this is an issue of management, as the noble  Lord, Lord Lansley, said—and how giving the Secretary of State these powers can maintain the independence of a regulatory body?

Baroness Merron: My Lords, it is essential that we get the arrangements for the Care Quality Commission right throughout the Bill, and I am grateful to the noble Lord, Lord Lansley, for trying to do that through these amendments. If the health and social care provided is to be of the highest standards, we must ensure, through the powers of scrutiny and review in your Lordships’ House, that we enable the watchdog to have the proper tools and framework to achieve that, so I support the amendments.
As the noble Baroness, Lady Brinton, emphasised, this is about putting the responsibility in the right place to ensure that a key inspectorate can do an independent job and support proper integration and delivery. I hope the Minister will accept the good sense in these amendments.

Baroness Altmann: Can I briefly ask my noble friend whether part of the thinking behind the current wording might be that the remit of the CQC may need extending? For example, when it comes to private operators of social care, the CQC currently does not have the power to look at the financial stability of those operators. Is this provision perhaps based on the thought that the Secretary of State may need to widen the remit and powers of the CQC? If not, we will be returning to this at some point.

Earl Howe: My Lords, I thank my noble friend Lord Lansley for bringing this debate before the Committee. He has made some worthwhile points but I hope to be able to explain why I think his amendments should not be pressed.
My noble friend Lady Altmann is not quite right in what she suggested was the intention of Clause 26. Clause 26 will allow the CQC to look across the integrated care system to review how integrated care boards, local authorities and CQC-registered providers of health, public health and adult social care services are working together to deliver safe, high-quality and integrated care to the public. That will include the role of the integrated care partnership. These reviews serve several functions. They will provide valuable information to the public, help drive improvement, and review progress against our aspirations for delivering better, more joined-up care across the system.
These amendments would remove the requirements on the Secretary of State to set and approve the priorities for these reviews. They would also remove the Secretary of State’s ability to direct the CQC to revise the indicators of quality that it will determine for these reviews. Instead, the amendments would add a requirement on the CQC to consult on those indicators with the Secretary of State, prescribed persons and other persons considered appropriate.
I entirely see where my noble friend is coming from as regards the CQC’s independence, but I must tell him that we have thought about this issue very carefully and we think it is right that the Secretary of State, who is accountable to Parliament, should have the flexibility to set the overall strategic direction of these reviews,  with priorities and objectives. That is not an open-ended facility. In the other place, we accepted an amendment to develop this further by making it clear that the priorities set by the Secretary of State must relate to leadership, integration, and quality and safety. The amendment would remove that certainty.
As I have already mentioned in previous debates, there will be quite a range of different forms of accountability and oversight within the system, including NHS England’s role in overseeing ICBs. As a result, we think that the Secretary of State should play a strategic role to ensure that the CQC reviews complement the other oversight and accountability mechanisms. This will be achieved, in part, through the Secretary of State’s approval of the quality indicators. To provide my noble friend with an analogy, we believe, as I am sure he does, that there is a proper role for the Secretary of State in setting the strategic direction of NHS England. He does this, of course, through the mandate.
Finally, the drafting of this clause is not an accident. It is drafted deliberately to protect the independence of the CQC in how it operates, while also encouraging consultation and collaboration. It will allow the CQC to develop its approach in collaboration with NHS England and other partners in the system. The CQC is already intending to develop its approach to these reviews co-operatively and is able to consider a wide range of views in doing so. We do not think it is necessary to require it to consult.
I hope this has given my noble friend some reassurance as to why we have taken the approach we have and, for these reasons, I ask him to withdraw his amendment.

Lord Lansley: I am grateful to my noble friend for that explanation, which, I am sorry to tell him, wholly fails to provide reassurance. First, he was wrong, in the sense that he maybe implied that my amendments would have removed the Secretary of State’s requirement to approve the indicators on which the commission chooses to base its reviews. That is left in at new Clause 46B(4)(b), so the approval of the Secretary of State for the indicators would remain. What is being taken out by my amendments is the requirement for the Secretary of State to set objectives and priorities. I am afraid that everything that my noble friend said went to support my view that there is an erroneous perception on the part of the Government that the CQC must be turned into an integral part of the management of the NHS and the integrated care system. That is simply not the case.
I am grateful to the noble Baroness, Lady Brinton, for her support. I quibble with her slightly in a pedantic way. We should not talk about the CQC as just another regulator; it is the inspectorate. In my experience, inspection should never be regarded as a substitute for management. Quality is integral to the management of the service. The CQC is there to determine and review whether that quality is being achieved, which is why I am perfectly happy for the Secretary of State, and indeed others, to be consulted and for the Secretary of State to approve the indicators of quality that the CQC arrives at. Frankly, however, for the Secretary of State to go further and start to prescribe the way the objectives of the CQC are set in this way is directly at  odds with how the CQC reviews and reports on other NHS bodies. I can see the drift of this. If we accept it, we will end up with the CQC being told by the Secretary of State what its indicators of quality are for every NHS body and setting objectives and priorities for the CQC right across the board, which is completely at odds with the independence of the CQC.
I shall make one final point. I am grateful to my noble friend Lady Altmann. Exactly the same argument applies to Clause 137, although I have not tabled amendments to it. It creates the CQC’s additional scrutiny and performance assessment of social care functions. We should therefore come back to precisely the point that she is talking about, as she suggests.
I hope my noble friend the Minister will take my point and that we might have further conversations between now and Report. However, I have to tell him that it is not just me who raises these points; I have been asked by representative bodies within the NHS to do so. We should take them seriously and hope that between now and Report we might see whether there are better ways to structure Clause 26 to secure both the Government’s objectives and what the NHS would expect to happen. I beg leave to withdraw the amendment.
Amendment 162A withdrawn.
Amendment 163 not moved.

Baroness McIntosh of Hudnall: We come to the group beginning Amendment 164. The noble Baronesses, Lady Brinton and Lady Masham, will be contributing remotely to this debate.

Amendment 164

Baroness Wheeler: Moved by Baroness Wheeler
164: Clause 26, page 37, line 35, at end insert—“(4A) The indicators of quality set by the Commission under subsection (4) must include—(a) whether national standards in the care of people with rare and less common conditions are being met;(b) whether the views of patients with rare and less common conditions are being represented;(c) whether people with rare and less common conditions have access to a named clinical nurse specialist.”Member’s explanatory statementThis amendment would require integrated care boards to be assessed by the Care Quality Commission on the provision of care for people with rare and less common conditions, in particular.

Baroness Wheeler: My Lords, Amendment 164 heads this wide-ranging group and probes how the proposed Care Quality Commission rating system for ICBs’ work in practice, with a particular focus on rare and less common conditions, although this debate is more broadly relevant to all aspects of the CQC’s role.
Amendments 178 and 240 from the noble Lord, Lord Sharkey, to which I have added my name, also relate to people with rare diseases and their access to innovative medicines and medicinal products, and the general need for awareness-raising about those conditions among health and social care staff. I remind the Committee  of my role as vice-chair of the Specialised Healthcare Alliance. The noble Lord will speak to those amendments later.
The group also covers amendments on wider care and safety issues that impact on patients, including ensuring that liothyronine T3 is available to patients when it is prescribed by a doctor and the regulation of healthcare and associated professions. This includes safeguards to apply under the Secretary of State’s power to alter the professional regulatory framework; protecting the use of the title “nurse”; hospital food standards for patients and training for staff; reviewing the surgical consultants’ appointment process; and licensing aesthetic non-surgical cosmetic procedures in registering cosmetic surgery practitioners.
The noble Lords who have their names to these amendments will speak to them, so I will leave them to it and concentrate on my rare disease issues and the matters that our Front Bench team have added their names to. Returning to the CQC, and following on from the previous debate on Clause 26, on the amendment tabled by the noble Lord, Lord Lansley, regarding the role of the Secretary of State in setting objectives and priorities, overall, we welcome the extension of the CQC’s remit to ICBs but now need to understand how it will work in practice.
As it stands, the Bill establishes an overarching framework under which the CQC will need to determine for itself the quality indicators against which it will assess ICBs. My amendment raises the issues about the quality indicators relevant to those with rare and less common conditions. If the purpose of the rating system is to protect patients, it must help to ensure that national standards of patient care, where they exist, are being met. Under the NHS’s plans to jointly commission or delegate commissioning responsibility for specialised services to ICBs, set out in NHS England’s Integrating Care paper, an important assurance given is that specialised services will
“continue to be subject to consistent national service specifications and evidence-based policies determining treatment eligibility.”
Will the CQC ensure that services organised by ICBs are organised in line with these national specifications?
Moreover, people with rare diseases are concerned that if services are to be commissioned in some way by ICBs in future, rather than just NHS England, their voices may be lost. NHS England’s specialised commissioning team meets regularly with representatives of the rare disease community, including the SHCA, and it is important that ICBs can hear their views too. How will this happen and how will the CQC rating system act to ensure that this happens?
Finally, one of the key asks of patients with rare diseases to help deliver continuity in their care is that they have access to a named clinical nurse specialist, which is commonplace for patients with more common conditions. That continuity of care is an important marker of quality. Will the CQC rating system help to deliver it?
Beyond these questions are broader ones. If the bulk of the CQCs work will continue to focus on inspecting providers, can the Minister explain how it will ensure that its ICB ratings are not unnecessarily duplicative, given that providers will form part of ICBs?  Also, the CQC looks at whether services are safe, effective, caring, responsive and well led. Given that the first three of these should continue to be the primary concern of those providing care, rather than of the ICBs organising it, how will the CQC ensure that the new rating system clarifies rather than dilutes this accountability? How will the CQC’s work align with the wider performance management of ICBs undertaken by NHS England? How specialised services will operate is a complex area and I am happy for the Minister to write to me on some of the specifics of my questions.
As I said, I will speak briefly to other amendments in this group, to which Labour Front-Benchers have added their names. Amendment 243, tabled by my noble friend Lady Merron, covers the important issue of the protection of the title “nurse”, and is supported by three respected medical and healthcare professionals whose contributions I look forward to. The recent Health Service Journal survey found hundreds of roles that do not require Nursing and Midwifery Council registration but use “nurse” in the job title. While “registered nurse” is a title protected by the NMC, “nurse” is not. The term may be used by anyone in the UK to offer professional advice and services, and people with no nursing qualifications or experience, or who have been struck off the professional register, may use it.
Obviously, this is worrying and even dangerous—a dangerous trend which potentially compromises patients’ health. What progress is being made on the Government’s review of healthcare professional regulation following their consultation last year? Surely we must follow the example of other countries, such as France and Australia, in giving the consistently most trusted profession in the UK the recognition and protection that it deserves.
My noble friend Lady Thornton has added her name to Amendment 258, from my noble friend Lord Hunt, to the welcome new Clause 145, on hospital food standards. It underlines the importance of investment in the food served to patients in hospital and other care and treatment settings. It is welcome because it specifies food quality and standards and stresses the importance of recognising staff skills, experience and training, as well as ensuring investment in NHS kitchens and catering equipment to ensure that the highest standards can be maintained.
On Amendment 266 from my noble friend Lady Merron, we seek to give the Secretary of State power to introduce a licensing regime for aesthetic non-surgical cosmetic procedures and to introduce an offence of practising without a licence. This area is crying out for regulation. The Department of Health’s own report has said that non-surgical interventions which can have major and irreversible adverse impacts on health and well-being are almost entirely unregulated. We fully recognise that this is also a highly complex policy area. However, I understand that noble Lords concerned about this issue had constructive and positive discussions yesterday with the Minister, and I look forward to the Minister updating the House on the scope and discussions of the Government’s ambition in this important area.
Finally, I offer my strong support for my noble friend Lord Hunt’s Amendment 176, which seeks to ensure that the general powers of the Secretary of State to direct the functions of NHS England include  ensuring that when T3 is prescribed to patients with hyperthyroidism, the drug is made available to them. My noble friend rightly raises this issue at every opportunity, and I hope the Minister will have a bit of good news for him today and tell us that some real progress has been made. It is clear that many thyroid patients would benefit hugely from the declassification of T3 as a high-cost drug, back to a drug that is routinely prescribed in primary care. It is much cheaper now, and the many patients who were taken off the drug and continue to be denied it need to have it restored. The Government must ensure that the now updated NICE guidelines which reflect this new position are implemented consistently across the new NHS structures, rather than repeat the record of the nearly 50% of CCGs which failed to ensure that the drug is properly prescribed.
I will leave it at that, and I look forward to the debate.

Baroness McIntosh of Hudnall: I remind the Committee that both the noble Baronesses, Lady Brinton and Lady Masham, will be contributing remotely. I call the noble Baroness, Lady Brinton.

Baroness Brinton: My Lords, I have signed two amendments in this very wide-ranging group. The first, in the name of the noble Lord, Lord Hunt, is Amendment 264 on the appointment of surgical consultants. As the noble Baroness, Lady Finlay of Llandaff, said in your Lordships’ House recently, 48% of advertised consultant posts last year went unfilled. Given our discussions about the workforce earlier this week, we need as many posts filled as possible and to remove any bureaucratic barriers to so doing.
Part of the problem at the moment is that trusts are having difficulties establishing appointment panels which can make these consultant appointments. Currently, the rules are too tightly drawn in the National Health Service (Appointment of Consultants) Regulations 1996 and the subsequent 2005 guidance. The members of all the royal colleges across the UK have a wealth of expertise, but the current legislation says that only members of English royal colleges can help trusts fill their appointment duties. In its helpful briefing, the Royal College of Surgeons says that the Royal College of Emergency Medicine, the Royal College of Physicians and Surgeons of Glasgow and the Royal College of Physicians of Edinburgh are excluded from being eligible to join these panels. This amendment would be a simple remedy and speed up the appointment of much-needed consultants, and I do hope that the Minister can agree to it.
I have also signed Amendment 266 in the name of the noble Baroness, Lady Merron, on the urgent need to ensure that practitioners undertaking non-surgical aesthetic procedures such as lip fillers, injectables, thread lifts, semi-permanent make-up, laser treatments, piercings and tattoos are properly trained and licensed. These treatments are easily available to members of the public, but without the safeguards required when being carried out in the health sector. I am afraid that we see daily in the press and media reports on the  many problems when treatments go wrong, which can include infection, disfiguration and burns, among other serious issues. When treatments do go wrong, it is usually the NHS that has to pick up the pieces, so I believe it is very much in the interests of the Department of Health and Social Care to accept this amendment.
The signatories to this amendment have been working with the Chartered Institute of Environmental Health, alongside a coalition of public health organisations and industry representatives, so that we can make sure that a licensing scheme can be introduced for all non-surgical aesthetic procedures. This will enable the setting of appropriate standards, a level playing field for practitioners and, importantly, protect consumers in this sector.

Baroness McIntosh of Hudnall: I call the noble Baroness, Lady Masham of Ilton.

Baroness Masham of Ilton: My Lords, I shall speak to Amendments 178, 266 and 293. Amendment 178, which was tabled by the noble Lord, Lord Sharkey, is important for people with rare and less common diseases. The amendments could be a lifeline for people who have rare conditions who use products that may be the only substances that work. There is an enormous selection of rare conditions. It can be a desperate situation when some medicines are developed but take a long time to be given the all-clear by NICE. Some medicines are not available in England on the National Health Service but are available in other countries, sometimes even in Scotland. That is devastating and frustrating.
I support Amendments 266 and 293, on the cosmetic surgery industry, which must be made safer. It is extraordinary that this business is only partially registered. Many people who have such a procedure take for granted that the practitioner will be registered and fully insured. There have been some disastrous results when things go wrong with a beauty procedure. I know of some plastic surgeons who work only in the National Health Service, as they do not want to be tarred with the same brush as uninsured cowboys. Amendments 266 and 293 deal with a wide selection of cosmetic procedures, some of which are psychologically important to many people. There is wide interest in making this trade safe and getting it registered. I hope the Minister realises that this is an important matter that needs putting right.

Lord Hunt of Kings Heath: My Lords, I have Amendment 176, the second amendment in this group, and two other amendments. I shall start with Amendment 176 which is concerned with the treatment of thyroid patients who continue to be denied liothyronine, otherwise known as T3, as the most appropriate treatment for them. For some patients, the standard treatment is not effective. T3 has proven to be a much better treatment, but tragically, a few years ago the manufacturers grossly inflated the cost of T3 by a massive 6,000%. Understandably, NHS England and its associated prescribing advising machinery strongly discouraged the use of the drug and, as a result, many patients had  T3 withdrawn and suffered quite considerably or had to fund it privately or source it from abroad. Happily, the price of T3 has come down by 75%, although it could go down further, but I believe it is no longer categorised as a high-cost drug.
The problem is that clinical commissioning groups still treat it as a high-cost drug, so the situation is still very difficult for patients who need it—those for whom the standard treatment is not appropriate. The current guidance states that T3 can be prescribed to patients who have unresolved symptoms on the standard treatment if it is initiated or confirmed following a review by an NHS consultant endocrinologist. A statement in July 2021 restated NHSE guidance, but it has not been followed by clinical commissioning groups. A survey done recently by UK thyroid charities, to which I pay huge tribute, says that 44% of CCGs have not fully adopted the national guidelines or are wrongly interpreting them.
What are we to do? What is the situation here, where we have clear guidance that is not being followed? This goes back to our previous debates about the various mechanisms being brought in to ration treatments, against national guidance or technology appraisal advice from NICE. It is the same issue. I am not expecting the Minister to issue a direction but I am expecting him to tell CCGs and, in future, integrated care boards to get off their backsides, start implementing the guidance properly and realise that this is no longer such a high-cost drug. I appeal to him to do something about that.
I also hope that the Minister will do something about hospital catering. I confess to your Lordships that I am president of the Hospital Caterers Association, where I work very closely with some great professional staff who have to work with their hands tied behind their back. Often they do not have the resources to provide the high-quality food that everyone wants and expects.
During Covid we saw in many local NHS facilities a determination to do everything possible to improve nutrition for both patients and staff. Miraculously, hot food was made available to staff overnight, which, as noble Lords know, seems to have been beyond the capacity of the NHS for many years. I do not know why I am looking at the former Chief Nursing Officer as I say this; I think it is an appeal for support.
This clause is highly welcome as I believe it will lead to higher standards, but my amendments would enable the caterers to deliver on them. The first key point is this: they need the resources to be able to do it. The amount of money spent on hospital food per day at the moment is simply not sufficient. Secondly, we need more training for staff. The training programmes have disappeared, and we need to get them back in to give staff the opportunity to show what they can do. Thirdly, we need to make sure that NHS trusts and foundation trusts are fully on board with bringing forward these regulations. There is no doubt that the efficiency programmes have taken their toll on the budgets for hospital catering and that, equally, the old-style national training schemes fell away and have not been replaced. The pay grade of qualified chefs and cooks needs to be reviewed to reflect the importance of their role.  This issue is important in terms of the standards of food and nutrition for our patients and for the well-being of our staff.
My final amendment in this group is Amendment 264. What links all these amendments is that we need more consultants appointed—a small effort to enable us to improve the efficiency of the system. I remind the Committee of my GMC connections in relation to this. The amendment would add the Royal College of Surgeons of Edinburgh and the Royal College of Physicians and Surgeons of Glasgow, and their associated dental faculties, to the colleges that may be involved in the appointment of NHS consultants. My amendment was inspired by the Royal College of Surgeons of Edinburgh, which noble Lords might be surprised to learn has an office in Birmingham because many consultants who work in the English NHS are members of the Scottish colleges.
There seems to be a lacuna in the current regulations. According to the National Health Service (Appointment of Consultants) Regulations 1996 and subsequent guidance issued by the department in 2005, only the Royal College of Surgeons in England is permitted to review surgical consultant job descriptions and send a royal college representative to the advisory appointment committees when it comes to the appointment of consultant surgeons. Other elements of my amendment apply to the appointment of physician clinicians, and the Royal College of Physicians of Edinburgh and the Royal College of Emergency Medicine are also supportive. Although the process and guidance apply only to NHS trusts, foundation trusts are encouraged to follow it.
The Minister has yet to accept any amendment to the Bill. The usual line from the Government is, “We will do this when legislation is available to do so.” Here is a great opportunity for the Minister, as we are here on day 6 of Committee, to get up and say that he is going to accept my amendment.

Baroness Barker: My Lords, in following the noble Lord, Lord Hunt, I declare an interest as the patron of the National Association of Care Catering, a position that I took over from the noble Baroness, Lady Greengross. I admit that, when I had this great honour thrust upon me, I had little idea what I was getting into—and I have discovered a world of highly dedicated, professional people whose contribution to the health of the nation is very much overlooked. I managed to attend their national conference in Nottingham last October, and I have to say that it was one of the most harrowing afternoons I have spent, as they talked about what they had gone through as the people who supply catering not only in hospitals and acute hospitals but in care homes, as well as doing meals on wheels.
I will pick up one point that the noble Lord, Lord Hunt, made, on training. He is absolutely right that this area has suffered a great deal because of various changes not just to training in the NHS but to the training in higher education. We do not have a recognised qualification in care catering in this country, yet these are people who have to produce food for people who have dysphagia, multiple food intolerances and dementia, people who quite often are suffering from malnutrition when they come into hospital, and people who have  allergies and often suffer from dehydration. The people who have worked in this field, and some of them have worked in it for many years, suffer a deep sense of frustration, which is that when young people in school or college show an aptitude for or a willingness to go into the world of catering, they are directed towards restaurant catering, because that is where the teachers and lecturers think the money is to be made. Actually, catering for people with difficult medical conditions is a lot more complicated.
I say to the Minister that I am also really impressed by the specialist companies that work in this field—those that produce specialist menus and enable people to order ingredients for complicated menus in complicated settings, as well as those that manufacture cutlery and crockery and vessels that can be used by people whose interaction with that sort of thing is hampered. These can bring a dignity and focus to something that is much overlooked—but talk to dieticians and you will increasingly understand the importance that food plays in maintenance of health and recovery.
I do not know whether or not this will make it into the Bill, but will the Minister go back to the department and ask whether his officials might meet some of the people who do a remarkable and much overlooked job, day in, day out, and who these last two years, perhaps more than anybody else in the NHS, deserved the clap, if only people knew what they had done?

Baroness Fraser of Craigmaddie: My Lords, in this rather large group of amendments, I shall take us from catering to my Amendment 242 on professional regulation. I thank the noble Baroness, Lady Finlay, for adding her name. I draw your Lordships’ attention to my registered interests, in particular as chief executive of Cerebral Palsy Scotland. I am involved with the employment of regulated allied health professionals.
Clause 142 gives the Secretary of State far-ranging powers to alter the professional regulatory landscape, with the potential to make significant changes to how certain health and care professions may be regulated, including the power to remove professions from, or bring professions into, statutory regulation.
The UK model of regulation for healthcare is rigid, complex and needs to change to better protect patients, to support our health services and to help the future workforce meet future challenges. The case for reform has been acknowledged.
Whether a health and care profession falls under regulation is a major decision affecting not only the professions themselves but employers, patients and service users who place their trust in those professionals. My Amendment 242 is a probing one. I want to explore some of the issues that will be particularly important for the Government to consider as and when they might seek to use these extended powers.
I want first to thank my noble friend the Minister and the Bill team for the time they have taken so far to discuss the issues around my amendment. We are all agreed on the importance of encouraging greater collaboration between regulators, with the ability to share data and intelligence, but I remain to be convinced that the legislation is being used to reduce regulatory silos, which is crucial to reducing regulatory failures in the future.
I want to be clear that I am not advocating for a single super regulator, which would be a step in the wrong direction, not to mention complicated, disruptive and expensive. I would rather harness the best elements of professional regulation and give the regulators the tools to work more closely together and share best practice more consistently.
I accept that work is being done in the department on various regulatory reform initiatives. These are all important, but it strikes me that they are all focused on individual regulators and amend specific operational issues, rather than looking at the landscape as a whole and what could be achieved.
We have sadly seen all too many reviews and inquiries which have identified regulatory silos as a key factor in why something went terribly wrong. My noble friend Lady Cumberlege’s First Do No Harm report highlights the issue starkly, but the Paterson inquiry, the Sir Robert Francis report on Mid Staffs, the Shipman inquiry and others have all underscored the value of greater collaboration between regulatory bodies, sharing data and intelligence as well as adopting shared professional standards. Reducing and removing silos is also good for professionals and employers, with benefits in terms of intra-professional learning and for professional and patient safety.
I am grateful to the Health and Care Professions Council for its briefing, but I was concerned to note something which regulators have stressed to me: that due to their tightly defined duties, they have often been forced to resort to informal memorandums of understanding to try to make the system work better. That is piecemeal and inefficient— frankly, I would be extremely disappointed if the Minister in his response was to rely on such MoUs to fix the issue.
Do not the powers in this Bill offer a chance to look at things differently: a whole system regulatory approach rather than a set of silos? Amendment 242 identifies some principles and considerations that I believe the Government would find beneficial in developing this more collaborative landscape.
Maintaining regulatory independence is crucial. The Government have rightly recognised this in other legislation recently, but I would welcome confirmation from the Minister that this remains a cornerstone of any future regulatory reform proposals. I would be grateful for reassurance that no regulatory reform would be undertaken by the UK Government without working with the devolved Administrations to ensure that it worked for all parts of the UK.
I particularly want to highlight the benefits of multi-profession regulation, which, as the CEO of an organisation that relies on a range of expert allied health and care professionals registered with the HCPC, I see at first hand, supporting improvements across professions that are increasingly interconnected. As the Minister is aware, the HCPC regulates 15 professions, so is able to utilise common frameworks and outcome-based standards. This approach could, and should, be spread among all the professional regulators.
This is particularly important as the Government, NHS England and NHS Improvement seek to create a more flexible workforce with an ability to move between professions, work as multidisciplinary teams and support  career progression. From my own experience, I know that this is positive, but we need our regulatory system to keep up with innovations in delivery. Can my noble friend the Minister therefore tell us about how we can harness the benefits of multi-profession regulation and how he anticipates this will influence the Government’s thinking in terms of reform? Collaboration and the development of a system-wide approach to overcome fragmentation and silos is critical to the future success of regulation. It is an enabler of better care, and a collaborative structure would generate considerably higher and richer levels of data.
Finally, this holistic approach would offer an opportunity to create consistent criteria for making decisions about which professions may be brought into or taken out of regulation. Could the Minister put it on record today that the issues in the amendment are principles that would govern the future use of the powers within Clause 142, that they are all principles that the Government are actively considering and that no decisions on regulatory change would be taken if the criteria set out in this amendment were not met? Once again, I thank him and his team for his engagement so far, and I look forward to his response today. I hope we can continue discussions between now and Report.

Lord Patel: My Lords, I rise to speak to Amendment 243 in the name of the noble Baroness, Lady Merron, and Amendment 264 in the name of the noble Lord, Lord Hunt of Kings Heath.
Yesterday I was chastised—wrongly, in my view—for speaking at length. Such boldness requires training in speaking up, confidence in being right and using authority. The comments came from a government Whip, who happens to be a registered nurse. As a doctor, I am used to that. When a nurse speaks up, patient safety improves, health equity improves, collegial relationships are stronger—again, as a doctor I can vouch for that—and healthcare systems improve. This is because of their training. Not recognising legally the status that the title of “nurse” brings to those that are highly trained and qualified and on a nursing council register is wrong.
We all know what a nurse is; a nurse is highly trained, highly competent, can do the job well and is on a nursing register. Anybody else is not a nurse. It is right, therefore, that we recognise this and give it a legal status. Furthermore, the NHS and health providers should not employ anyone as a nurse who does not meet the above criteria. I understand that last year there were 195 advertisements for nurses in the NHS which did not say that the qualification of being registered was necessary. In my view, that is wrong. I strongly back this amendment, and I look forward to the contribution of my noble friend Lady Watkins.
Turning to Amendment 264 on the appointment of consultants in surgery, I am a fellow of the Royal College of Surgeons of England, the Royal College of Surgeons of Edinburgh and the Royal College of Physicians and Surgeons of Glasgow, so I speak on behalf of all surgical colleges. Let me give your Lordships an example: there is a surgical post empty in Birmingham. A highly qualified person, who was well-trained in Scotland and holds a fellowship of the Royal College  of Surgeons of Edinburgh, is a key candidate for application but cannot be appointed because the Royal College of Surgeons of England cannot provide an assessor. On the other hand, there is a surgical vacancy in Glasgow, and the top candidate is a fellow of the Royal College of Surgeons of England but can be appointed without a Royal College of Surgeons of England assessor being there. That is a total anomaly.
A person can be appointed who is fully trained in Scotland, is a fellow of the Royal College of Surgeons of Edinburgh, works in Cambridge, applies in Cambridge, but you cannot have an assessor from the Royal College of Surgeons of Edinburgh. In all other specialties—the Royal Colleges of Obstetricians and Gynaecologists, of Ophthalmologists, of Radiologists, of Psychiatrists, of Anaesthetists, and in public health—the assessor can come from any part of the United Kingdom. This anomaly can be stopped very easily. I agree with the noble Lord, Lord Hunt of Kings Heath, that it is not a big deal; just change it in legislation. I do not know who opposes it.

Baroness Watkins of Tavistock: My Lords, it is a pleasure to follow the noble Lord, Lord Patel, on the term “nurse”, which is protected in law at the moment only for those who are a “registered nurse”. This means that anyone can describe themselves as a nurse, as the noble Baroness, Lady Wheeler, outlined. They can even describe themselves as a nurse if they have no qualifications or experience—or, perhaps more seriously, have just been struck off the register. As somebody who was a member of the forerunner to the Nursing and Midwifery Council, I can say that we do not strike people off the register lightly, so the risks of such people being at large and describing themselves as nurses are serious. For this reason, a petition was created calling for the title “nurse” to be protected further in UK law.
In the initial response by the Government to the petition, recognition was given that the protection of professional titles
“provides assurance to the public that someone using that title is competent and safe to practise.”
The response references a consultation by the Department of Health and Social Care on professional regulation, Regulating Healthcare Professionals, Protecting the Public. In the Nursing and Midwifery Council response to this consultation, the nursing regulator recognised issues around the limitations of “nurse” not being a protected title and said it did not think that its current powers are sufficient,
“given that they are primarily based around titles that are not widely understood by the public or used by the professions.”
This amendment is designed to ensure that there are sufficient regulatory levers to be able to protect the public in the future.
Nurses on the NMC register find it difficult to understand why the Government are reluctant to protect the title. As part of the statutory regulations of the Health and Social Care Act 2012, it was mandated that registered nurses would be part of the clinical commissioning group governing body. In Regulation 11 of the National Health Service (Clinical Commissioning Groups) Regulations 2012, the CCG governing body is required to include at least one registered nurse within  its membership. This created a statutory commissioning role for nursing leaders in England that will be lost should this not be required within integrated care boards’ executive membership. Please can the Minister explain whether guidance will include a recommendation that there should be a registered nurse as part of the executive team on integrated care boards?

Lord Kakkar: My Lords, I support Amendment 264, in the name of the noble Lord, Lord Hunt of Kings Heath, to which I have added my name. In so doing, I remind noble Lords of my own interests, particularly as a fellow of the Royal College of Surgeons of England, a fellow of the Royal College of Physicians of London and an honorary fellow of the Royal College of Surgeons of Edinburgh.
This is a critical amendment, as the noble Lord, Lord Hunt of Kings Heath, indicated, strongly supported by my noble friend Lord Patel. Currently, the National Health Service (Appointment of Consultants) Regulations 1996, with additional guidance provided by the department in 2005, restricts membership of advisory appointments committees for consultants to certain royal colleges, as we have heard with the appointment of surgeons by the Royal College of Surgeons of England alone—and, indeed, for physicians by the Royal College of Physicians of London. This is an anomaly. The medical royal colleges across the United Kingdom are recognised in terms of the postgraduate training that they are able to supervise, the continuing professional development they are able to provide and, indeed, collaborate with regard to postgraduate examination which is required for provision of the certificate for the completion of specialist training. However, when it comes to the question of consultant appointment, there is this restriction.
Noble Lords might ask why it is important that this matter be dealt with. The provision by a medical royal college of a professional member to serve as part of the appointment process for a new consultant is critical. Those representatives provide expertise and insight with regard to the nature of the job description, the requirements for the individual post, and the assessment of individual candidates as part of the selection process on the day.
The regulations apply only to non-foundation trusts, but guidance provided in 2005 recommends that NHS foundation trusts follow exactly the same process and involve representatives on these advisory appointments committees. In addition, the Academy of Medical Royal Colleges has strongly encouraged that all consultant appointments follow these regulations and guidance. This means that, when it comes to the question of consultant appointment, only representatives nominated by the Royal College of Surgeons of England can serve.
This is creating a bottleneck in terms of appointment of consultants, and this is happening at a critical moment, when the NHS must look to make more and more consultant appointments to meet the increasing demands we are seeing—particularly with regard to long elective waiting lists—that attend surgical specialties and subspecialties in particular.
It is possible that NHS foundation trusts might take the view that this bureaucratic hurdle to finding members for advisory appointments committees from the royal colleges could easily be overcome by ignoring the guidance. Then, we would lose this critical element of expert professional input into the appointment of future consultants. That would really be a very unfortunate situation.
As we have heard from the noble Lords, Lord Hunt of Kings Heath and Lord Patel, this is a very easy issue to address. There is no objection, and it would send a very powerful signal, with regard not only to the importance of professional participation in the appointment of future consultants but to the recognition that, although health is a devolved matter, we recognise the United Kingdom as a single entity in so many questions for the provision of health and, in particular, the training and development of healthcare professionals and their ability to work across our entire country.

Lord Lansley: My Lords, can I just take us back to Amendment 266, to which I have added my name, before we lose sight of it? It was helpfully introduced by the noble Baroness, Lady Wheeler, and its purposes were explained very well by the noble Baroness, Lady Brinton.
I just want to add a bit of context, which I hope will commend itself in particular to my noble friend Lord Howe on the Front Bench, in that he and I tackled together the PIP breast implant problems that emerged in December 2010 and which led directly, subsequently, to us asking the distinguished first medical director of NHS England, Bruce Keogh, to undertake an inquiry. Since the report of that inquiry, we have made considerable progress. Most recently, noble Lords will recall that the noble Baroness, Lady Wyld, took through the Private Member’s Bill from Laura Trott in the other place to assist in the regulation of Botox treatment for under-18s.
The point is that there is still unfinished business. Amendment 266 relates to giving the Secretary of State the power to set up a licensing process for non-surgical cosmetic procedures—not through the CQC in this case, because the CQC regulates healthcare professionals, but almost certainly through the mechanism of asking local authorities to undertake a licensing process. It gives the Secretary of State all the flexibility that we have grown accustomed to legislation having to give them, but it does so in a way that enables the regulation that would be brought in using this power to be proportionate, being very clear that it should apply only to those activities that present a significant risk. It makes sure that it takes advantage, for example, of the national standards that have been put in place by the Joint Council for Cosmetic Practitioners. It would be very helpful in trying to mitigate the risks associated with non-surgical cosmetic procedures.
Amendment 293 in my name is a follow-up to a Private Member’s Bill that made no progress. It again follows Bruce Keogh’s report and looks to give the General Medical Council the legislative opportunity and requirement to bring forward a scheme to put surgeons who have a specialty relating to cosmetic surgery on to its specialist registers. With Amendment 293, we have the benefit of being able to do this by virtue of  the recommendations in recent years from the Cosmetic Surgery Interspecialty Committee of the Royal College of Surgeons. It gives us an opportunity to give those who wish to undertake surgical treatments for cosmetic purposes the opportunity to see who is on the specialist register. All this relates to the safety of those undertaking cosmetic treatments, which is a large number of people; there is a large amount of activity and a significant need for the consumers of these services to have a degree of protection. I think we can make progress on that.
In the rest of this group, we have another opportunity to take action. My noble friend was right when she spoke about a more general approach. She will recall that, in April 2014, the Law Commission produced its recommendations on the regulation of healthcare professionals, so there is an opportunity to do something here. If we do not do it in this Bill, it would not hurt for the Government to tell us more about how they might make progress on the broader regulation, in addition to what is being proposed here.
I want to mention two other things. First, we had an earlier debate about access to innovative medicines. This is another opportunity for my noble friend to tell the Committee that NHS England is proceeding with its consultation on the implementation of the innovative medicines fund. Secondly, we do not need to repeat the short debate we had in Grand Committee not so very long ago under the auspices of my noble and learned friend Lord Mackay of Clashfern, who enabled us to present a lot of arguments about the future of NHS Resolution and clinical negligence within the NHS. We do not need to repeat that, but Amendments 178 and 297E would of course help us in that direction, not least by repealing the redundant NHS Redress Act 2006, which has never been implemented. With that thought, I pass the ball to the noble Lord, Lord Storey.

Lord Bethell: My Lords, I support Amendment 266 in the name of the noble Baroness, Lady Merron, and Amendment 293 in the name of my noble friend Lord Lansley for all the reasons that my noble friend just articulated. I will not repeat them as he put them so very well. However, I would say to the Minister that, coming from the innovation space, I can see that the technologies for both cosmetic surgery and non-surgical cosmetic interventions are improving all the time. There is an incredibly rapid pace of change. They are set to continue to get better and better, so the marketplace is getting more sophisticated and their popularity is also exploding. We have been briefed on evidence about the role of social media in promoting non-surgical cosmetic interventions in particular. This is exciting, because it is great that people have access to these interesting products, but also extremely worrying, because not all the surgeries and non-surgical interventions are successful. It is the right time for the Government to intervene, so that we have a register of cosmetic surgical practitioners and a much clearer regulatory regime for non-surgical interventions.
I am pro cosmetic surgery. As a young boy, I had an inherited condition of having very big, sticking-out ears, which my father had and my cousins and aunts have, and it was miserable. I had them pinned back  and I am very grateful that that happened. It meant that I could be a much more confident person as I grew up. I am pro cosmetic interventions; if people want to use the benefits of medicine to improve their confidence in the way they look, I applaud that. However, standing next to my noble friend Lady Cumberlege, I am also aware of Bruce Keogh’s extremely good report and the very large number of interventions that have not gone well. I know that the Minister’s instincts are not to intervene unless absolutely required and my suggestion to him is that we have hit that moment. The marketplace is exploding and now is the right time to intervene.

Baroness Finlay of Llandaff: My Lords, as I address Amendment 266, I should declare that I am a vice-president of the Chartered Institute of Environmental Health. I stress that this amendment has been supported by the Beauty Industry Group, which represents 10 industry organisations—two voluntary registers for cosmetic practitioners, the Mental Health Foundation and others.
There are currently significant gaps in our regulatory system. Environmental health and licensing professionals work at a local authority level. They inspect, register and license premises for a very limited set of procedures, such as acupuncture, tattoos and piercing. Even for these procedures, however, there are no nationally set training programmes or qualification requirements for somebody to practise. For the riskier beauty procedures, such as the injectables, there are only voluntary registers of accredited practitioners. They have some approved education and training but that is not mandatory.
That means that there are many unaccredited practitioners on the high street providing services to people directly with no checks. A licensing scheme, as outlined in the amendment, would provide appropriate qualification and competency standards for practitioners wishing to practise, which is key to improving safety. The amendment as drafted is an open power for the Secretary of State, so it is easily amended as new procedures come online and on to the marketplace. The weakness of existing legislation in the area is that it fails to cover many of the newer treatments that are now popular.
When things go wrong, it is the NHS that has to pick up the pieces. Infections, injuries, scarring, burns and allergic reactions from a range of procedures often all end up in the NHS, sometimes with people being hospitalised and disfigured. Injection of fillers—or botulinum toxins—into blood vessels can cause dying back of tissues as well as blindness when administered by people who really are not adequately trained and certainly not registered. That means that there is no recompense for people damaged by these practitioners, who have no medical insurance or qualifications. In addition, there are unauthorised advertisements that breach advertising standards. There are strict laws around prescription-only medicines such as botulinum toxin, but these advertisements seem to bypass those.
Among members of the public who have had cosmetic procedures, alarmingly, three-quarters were given no information about the product, volume, brand or batch number of whatever was being used and just under three-quarters were not asked anything at all about  their psychosocial or mental health or any body image issues. It is a vast and complex area and there are gaps in regulations. We need a national framework of standards with qualifications that can be recognised, so that there is a clear badge for members of the public.
To briefly address Amendment 297, I suggest that it is not needed because dermatological surgery and plastic surgery are subsections of medical practice and already registered with the General Medical Council. This gets nearer to credentialling than to requiring a separate qualification. These are doctors. They are highly trained, they have gone through a recognised training programme and they have been often examined as part of their exit from their training in whatever procedure they are undertaking.
I remind the Committee that, in a recent letter from the right honourable Michael Gove, he said that he is considering a licensing scheme. I hope the Government will see that this amendment would allow such a scheme without tying the Government down, and I hope that they will accept it, as well as Amendment 264 from the noble Lord, Lord Hunt, for which I should declare that I am an honorary fellow of the of the Royal College of Physicians of Edinburgh and the Royal College of Emergency Medicine. I think the contents of the amendment would go wider than simply surgical procedures. The Royal College of Emergency Medicine was established as a separate medical college in 2008, but the guidance and regulations were written prior to that, so they are completely out of date for what is now emerging as a major specialty across medicine. That amendment would rectify a lacuna.
The last amendment I want to speak to is Amendment 242, so clearly introduced by the noble Baroness, Lady Fraser. We need clear and transparent criteria for deciding which professions are regulated, and how the Government use their powers and the principles behind the criteria. Amendment 242 would provide such criteria. As we have discussed in the context of a previous Bill on domestic abuse, titles such as “therapist”, “psychotherapist” and “counsellor” are not protected. Courses in these subjects are unregulated, their quality varies widely and they are not registered anywhere. Charlatan practitioners can wreak havoc on people’s lives. The public have no idea that these people are not registered or regulated in any way. Even if serious concerns are expressed or complaints raised about them, they remain immune from investigation through the channels by which the health professions are regulated. I urge the Minister to look at that carefully.
Linked to this is the proposal that the title “nurse” should be protected, and I, for one, strongly support that. There is confusion in the mind of the public, and I recall one charitable sector provider that put all nurses and care assistants in the same uniform. That meant that patients and relatives were completely confused as to who was a trained nurse and who was a care assistant. They had no idea about what staff could and could not do and how much information they could give. Fortunately, the uniforms were changed fairly quickly. The public have a right to know that they are being looked after by a highly qualified, very skilled person—and that is a nurse.

Lord Borwick: Briefly, I support Amendment 176 from the noble Lord, Lord Hunt. I first declare two interests as a patron of thyroid charities, particularly the Thyroid Trust, whose leader, Mrs Lorraine Williams, has done great work on behalf of patients. I should also declare that I once suffered from Graves’ disease, with an unpredictably hyperactive thyroid gland. This may have been one of the few parts of my body that was hyperactive, but it was surgically removed and, ever since, I have taken daily levothyroxine. However, some patients cannot take levothyroxine but need liothyronine instead. It is a shame that some patients have been unable to get that drug when they need it so badly. I know that the NHS must control total drug costs, but the history of its control of that particular drug has perhaps not been perfect. The fault is originally that of the manufacturer, not the NHS, but it is patients who have suffered. The amendment of the noble Lord, Lord Hunt, would solve this problem.

Lord Sharkey: My Lord’s, I shall speak to Amendments 178 and 240, and I remind the Committee of my interest as chair of the Specialised Healthcare Alliance.
Amendment 178 deals with innovative medicines and medicinal products. The debate on this amendment is very timely, given the recent conclusion of NICE’s review of its methods and processes and the current consultation on the innovative medicines fund. Both the review and the IMF consultation are to be welcomed. It is clear that they will result in improvements in the system of assessing medicines and medicinal products, particularly in respect of analysing and addressing uncertainty and incorporating more real-world evidence into decision-making. However, it is also clear that both the IMF proposals and the outcome of NICE’s review are at risk of falling short of the hopes of many patients, clinicians and the life sciences sector more generally in a number of important ways.
First, there is still a lacuna in NICE’s approach to considering treatments for rare disease. For ultra-rare diseases—those affecting fewer than 1,000 people—NICE retains its highly specialised technologies process. For more common conditions—those affecting more than 25,000 people—NICE has its separate technology appraisal process. But for patients with rare diseases—those affecting between 1,000 and 25,000 people—there is no process, and so treatments for these patients have to be considered instead through the unsuitable technology appraisal process. This gap sets us apart from other countries, such as the more generous ASMR system in France and the AMNOG system in Germany for evaluating rare disease treatments.
It was therefore very disappointing to see that the case for the rare disease modifier was again rejected in NICE’s review. It was rejected on the grounds that society does not value treatments for rare disease more highly than those for more common diseases. Those representing rare-disease patients would contend that the fact is that these treatments are inherently costly. The Government accept this in relation to ultra-rare disease, so why do they not do so for rare disease treatments? I would be grateful if the Minister could address that specific question when he replies.
Secondly, NICE’s own consultation looked favourably on reducing the discount rate at which NICE assesses the future costs and benefits offered by a treatment, saying that such a change
“could make a particularly big difference to some treatments, like gene therapies.”
However, NICE has now said that this change would not be possible, due to the views of “system stakeholders”, and this has disappointed many people. When the Minister replies, I would be grateful if he could expand on what “system stakeholders” really means in this context. Who is NICE talking about and why did it assign conclusive weight to their views?
Thirdly, the system in England still fails to formalise the input of patients and clinical experts in the way that, for example, the SMC in Scotland does through its patient and clinical engagement process.
Finally, proposals for the innovative medicines fund now move far beyond the originally planned narrow focus on autoimmune and rare diseases. This causes some SHCA members to worry that rare diseases will get less attention than originally envisaged.
These proposals fall short of the hoped for bridge between the MHRA’s licensing process—which reforms are speeding up in some cases—and NICE’s reimbursement process. Without such a bridge, earlier licensing will not deliver benefits to NHS patients, and ultimately companies will lose interest in making bespoke licensing applications to the MHRA. The Government’s own figures—the life sciences competitiveness indicators, published by the Office for Life Sciences—demonstrate that it is already the case that the per capita uptake of new medicines remains lower and slower in this country than in comparable countries.
Our Amendment 178 suggests that the Government review the situation by the end of the year, when we will have a good half year of experience of the changes to NICE and the operation of the IMF, and when we will be able to see that the hoped for improvements have materialised. I hope that the Minister will consider this suggestion.
I now turn to Amendment 240, which seeks to probe the Government’s actions to improve awareness of rare diseases among healthcare professionals. There are more than 7,000 rare diseases, and it would clearly be impossible for every healthcare professional to receive training on every single one of them. However, as the Government’s rare disease framework notes, healthcare professionals can improve their awareness of rare diseases more generally, be more alert to considering them and be provided with the educational resources that help them recognise rare diseases in patients. Healthcare professionals can also be better supported to help signpost patients with rare disease to information about their condition and to help them understand it.
In a 2016 survey by Rare Disease UK, it was found that 70% of patients were not provided with sufficient information on their condition following diagnosis, and that 35% of patients given information did not understand the information that they were given.
More recent surveys demonstrated that these challenges continue. The Government’s national conversation on rare diseases in 2019 found that almost one in five  people living with a rare condition reported that a lack of healthcare professional awareness of their disease was the number one challenge that they faced, and healthcare professionals themselves identified it as the second biggest challenge they faced behind only the well-known difficulties in obtaining an accurate diagnosis. I accept that healthcare professional regulators can do only so much to make improvements, but it would be helpful to understand from the Minister what steps they might be able to take to help better embed rare disease content in training frameworks.
Finally, there is a wider question of how the Government currently track progress in increasing awareness of rare diseases among healthcare professionals. How do the Government do that? I look forward to the Minister’s reply.

Baroness Meyer: My Lords, in speaking to Amendment 266, I shall not speak for long because everything has been said. The noble Baroness, Lady Finlay of Llandaff, explained the problem very clearly as did other speakers.
The only reason I want to speak is that in April last year I spoke in favour of the Private Member’s Bill introduced to this House by my noble friend Lady Wyld which sought to prevent cosmetic procedures being performed in England on people aged under 18 unless under the direction of a medical practitioner. The Bill was passed with cross-party and government support. As a result, children are now better protected. It is high time that we protected the population at large. When one hears of all the side-effects and that people can buy a product online and inject it into themselves or somebody else, it feels like the wild west, and the consequences can be quite dramatic, as we have heard. I very much hope that the Government will be able to support this amendment. This is not complicated and needs to be done quickly.

Baroness Pitkeathley: I want to follow the noble Lord, Lord Sharkey, because I am former chair of the Specialised Healthcare Alliance. I shall speak very briefly in support of Amendments 164 and 178 in his name and that of my noble friend Lady Wheeler.
Every reorganisation of the NHS leaves patients who have a rare or less common condition anxious about how their particular needs will be assessed, how they will be met and even how they will be noted. It is sadly true that the rarer or more specialised a condition, the more it comes down to a postcode lottery whether the patient will be able to access care in spite of established national standards. Not only is it harder to access care, it is also harder for these patients to access the support groups or information networks which are vital when finding out the sometimes rare information about these conditions. The suggestion in Amendment 164 that the CQC assess the provision by ICBs of care for those with rare or less common conditions would provide the assurance that is so badly need.

Baroness Bennett of Manor Castle: My Lords, in part because I listened to the lecture with which we started this session but more because it is an old anecdote, I shall forbear from telling my hospital food horror story. However, I will pick up on the points  made by the noble Lord, Lord Hunt, and the noble Baroness, Lady Barker, about hospital food and how hard people are trying to improve the situation. This relates to the answer the Minister gave me on Monday in Oral Questions. Of course, it is dependent on the budget that caterers have and the quality of the food that is available to them. I was pleased that the Minister then said that the Government are looking to tackle government procurement to improve the quality of vegetables and fruit. In terms of joining up the dots, that is a useful point to make.
On Amendment 243, I offer the Green group’s support and note that, having been in your Lordships’ House for only a little more than two years, I have debated a very similar amendment at least once before—I think it must have been on the Medicines and Medical Devices Bill. We have all seen briefings that are very much a cry from the heart from the nursing profession for this to happen. Surely we can get this into this Bill.
I mainly want to address Amendments 266 and 293 in the name of the noble Lord, Lord Lansley, to which I have attached my name. While I take the point of the noble Lord, Lord Bethell, that these procedures can be crucial to people’s well-being and enable them to feel more comfortable in their skin, I want to briefly address where these amendments have arrived from. A headline from the Sunday Times two weeks ago said that
“TikTok and Instagram have fuelled demand for nose jobs, butt lifts and boob implants”.
I was a sub-editor on the Times 20 years ago. Quite aside from thinking “What is the world coming to?” when I read that headline, it is important to stress how much pressure there is from social media, particularly on young people, to have these surgical and non-surgical procedures.
It is important to acknowledge that it is not just young people who are affected. We live in an extremely ageist society, and many older people, despite our shortage of labour in many areas, can find it difficult to get jobs, or at least jobs that fit with their qualifications. A survey from the American Aesthetic Surgery Journal found that 30% of people sought surgery after they had suffered discrimination. Ministry of Justice figures show that in 2020 there were 3,668 complaints about age discrimination at employment tribunals, and that was up from 2,112 in 2019. I am aware we are likely to hear from the Minister, “These amendments may be heading in the right direction, but we need more time. There are issues to think about before we do anything.” It is crucial to get action now on surgical and non-surgical issues.
Finally, last July’s report from the APPG on Beauty, Aesthetics and Wellbeing addressed the absence of regulation, and this particularly relates to Amendment 266. Picking up on the point from the noble Baroness, Lady Finlay, the report also called for mandatory psychological screenings to be implemented.
I would love to hear the Minister say “Yes, go ahead”, because there is a demand here for urgent action.

Baroness Watkins of Tavistock: My Lords, I apologise to the Committee for omitting to say that I am a registered nurse on the NMC database. I think this is important in relation to Amendment 243.

Baroness Walmsley: My Lords, I will be as brief as I can. I have a few words about some of the amendments in this wide-ranging group.
Amendment 243 would protect the title “nurse”. I know from family members that the qualification of registered nurse is always hard won, the result of very hard work. It involves rigorous basic training, often followed by further training in a specialty such as mental health nursing or surgery. The title provides a high level of trust among patients and the general population, because we know that a nurse must be registered with the Nursing and Midwifery Council, or a different responsible body for dental or veterinary nurses. There should therefore be clarity about who can use the title, and it could be sorted out very simply by the Minister—I hope he will do it.
A further anomaly, which the Minister can easily sort out in his reply, is that of the appointment of surgeons. I hope he will remove that anomaly as well.
I commend the work of my noble friend Lord Sharkey on rare diseases. I will not repeat what he said about what is needed, but I hope the Minister can give him some assurance.
I strongly support Amendment 266 on the need for a register for those who practise aesthetic non-surgical interventions. I will not repeat what my noble friend Lady Brinton and others have said about the reasons for this.
Amendment 293 requires a special register for cosmetic surgery. It is important that we have an up-to-date, comprehensive and rigorous method of assessing and registering the qualifications of surgeons safely to carry out cosmetic surgery. The question is: how is that done? I have received a briefing from the GMC, which tells me that it does not support the creation of a separate register for cosmetic surgery practitioners. Instead, the GMC believes that its proposal to move to a single GMC register that includes all doctors, anaesthesia associates and physician associates, and special annotation with work to develop relevant credentials, will provide additional assurance beyond that which could be provided by a separate additional register.
We are told that something better is coming down the track and that the forthcoming regulatory reform programme is intended to rationalise and streamline registration across all the UK healthcare regulators, and will allow the GMC to deliver an accessible, flexible and discretionary registration framework for all registrant groups. That is why the GMC believes that that will provide greater flexibility to develop and amend registration rules and improve its ability to innovate. Given the rapid development of new spheres of medicine and practices, such flexibility could be advantageous.
I understand that the GMC is now developing credentials with royal colleges and health education bodies, and that the first group of those is led by one on cosmetic surgery, plus four other disciplines. So, while I heartily agree with the intention of Amendment 293, I ask the Minister: when will the regulatory reform mentioned in the GMC briefing be completed? When will Parliament be able to see it and, in the meantime, how can we be assured that the current system gives the assurance on patient safety that is required?
I too support the noble Lord, Lord Hunt, on hospital catering and I too will resist giving my anecdote.

Lord Kamall: I thank noble Lords for their contributions and for sharing their knowledge and expertise—and, in the case of hospital food, not sharing their tales of inadequate and unhealthy food. I will try to answer as many of the questions as possible but, given the experience of the noble Lord, Lord Patel, of being advised by a nurse Whip, I am keen to make sure that I do not suffer those same warnings, as it were.
On rare diseases, specifying requirements in the way proposed by the amendment would restrict the ability of the CQC to collaboratively develop its assessments of integrated care systems. However, the Government are committed to improving the lives of people living with rare diseases. The noble Lord, Lord Sharkey, rightly talked about the UK Rare Diseases Framework that we published in January 2021, which set out our key priorities for tackling rare diseases. England’s action plan will be published at the end of next month.
I have had conversations with some in the life sciences industry who are keen on the fact that we are focusing on rare diseases and extremely rare diseases, and see that as a positive. One of the things that we are trying to do across government is to make sure that we are seen as a hub for expertise in rare diseases and especially rare diseases. One of my predecessors as a Minister suffered from a rare disease. The momentum is still there in the department to make sure that we tackle the issue.
Also, the CQC, through its ICS assessment methodology, will seek to understand how system leaders are monitoring and meeting the needs of the local population, including those with rare diseases. We expect the CQC, in collaboration with system partners, to use its experience as the independent regulator of health and adult social care in England to develop an approach to those reviews. I know that noble Lords may be tired of hearing this but it is important that the legislation allows the CQC flexibility to do so.
On Amendment 240, while the Government have sympathy with the need to raise awareness, we do not consider it appropriate to put such a requirement into primary legislation. I hope I have reassured the noble Lord about our programmes and our push to raise the profile of rare diseases and extremely rare diseases. We prefer that all healthcare professional regulators require professionals to have the necessary skills and knowledge to practise safely, including awareness of rare conditions. It is the responsibility of the regulators to determine what specific role they should play in raising awareness of rare and less common conditions.
On—and I apologise if I mispronounce this—liothyronine and the power of direction, the NICE guideline on the assessment and management of thyroid disease, as the noble Lord acknowledged, does not recommend liothyronine for primary hypothyroidism. NICE states that there is not yet enough evidence that it offers benefits over levothyroxine monotherapy, and its long-term adverse effects are uncertain. If new evidence was to emerge, I am sure NICE would consider it.
In addition, we must be careful not to override NICE guidelines. But, given the concerns raised by the noble Lord, Lord Hunt, and my noble friend Lord Borwick, I would like a further conversation, if that is okay, to see what can be done in this area, as well as where it is appropriate for me to act and what conversations would be appropriate, given the noble Lord’s experience as a Health Minister.
On Amendment 178, we are committed to further strengthening the innovation metrics and to improving our understanding of how innovative medicines and these products are used in the NHS. Noble Lords will be aware that following the publication of the final report of the Accelerated Access Review, the Government established the Accelerated Access Collaborative—AAC—last year. In fact, last year alone we helped over 300,000 patients access proven innovations, resulting in 17,000 fewer hospital admissions and 140,000 fewer days spent in hospital.
As noble Lords are aware, we published our ambitious Life Sciences Vision, which laid out our priorities. We want to make sure that the NHS is seen as a partner in innovation and that research is embedded into everything the NHS does. I know that this has been raised in relation to other amendments. We are currently developing implementation plans for delivering on these commitments.
As noble Lords acknowledged, NICE is in the final stages of the review of its methods and processes, and is proposing a number of changes that will introduce real benefits to patients, including rare disease patients. The Government are also committed to developing an innovative medicines fund, which my noble friend referred to, and a consultation on detailed proposals for the fund closes on 11 February.
Finally, our rare disease framework outlines the key priorities for rare diseases in the UK over the next five years. One priority area is to improve access to specialist care, treatments and drugs.
On hospital food, although we recognise the expertise and declarations of the noble Lords who spoke, we believe that this amendment is unnecessary because the issues are already covered, either as part of the ongoing work to implement recommendations from the hospital food review or in the NHS food standards document, to be published in spring 2022.
The Government are supporting NHS England to implement the recommendations from the independent review. These recommendations cover a broad range of issues, including nutrition, hydration, healthier eating and sustainable procurement. It is important for me to learn more about this as a Minister, given what the noble Baroness, Lady Barker, said about many people not receiving the recognition they deserve. It would be appropriate, perhaps, for us to meet and follow this up.
In addition, the Government already have sufficient legal powers and obligations to enable them to consult on proposed food standards, and we have engaged with NHS trusts, the food standards and strategy group, and the NHS food review expert group through the NHS food review. We will continue to do all this.
On Amendment 264, the regulations already allow trusts to seek alternative members to contribute to the process. They can be from colleges such as the Royal  College of Surgeons of Edinburgh, the Royal College of Physicians and Surgeons of Glasgow and the Royal College of Emergency Medicine. However, the Government agree that the changes proposed by noble Lords in Amendment 264 would potentially be advantageous —to put it that way—and we have undertaken to review the situation with officials.
The National Health Service Act 2006 stipulates that consultation with affected parties must be undertaken before any changes are made. Therefore, before we jump to it and agree, we are required to consult the relevant parties. It does seem a clear-cut case, but we are still under a duty to consult.
Turning to Amendment 266, I thank the noble Baroness, Lady Merron, for the meeting yesterday. Interestingly, we kicked around some of the issues and realised that this is not as simple as it might appear: where do you draw the line? The Government are committed to improving the safety of cosmetic procedures and ensuring that the regulatory framework allows consumers to make informed but safe choices. Patient safety must always come first. A number of noble Lords referred to the Private Member’s Bill from my noble friend Lady Wyld, which we were pleased to support for these reasons. The department wants to work with stakeholders to take this work forward in the most appropriate way, and we commend the work of the All-Party Parliamentary Group on Beauty, Aesthetics and Wellbeing in this area.
However, we must look at where you draw the line. When I have looked at studies from, for example, the United States, on structural racism and getting people from poorer backgrounds into work and them becoming entrepreneurs, an issue often raised is whether occupational licences are a barrier to people. In some states, you require a licence to braid hair. Where do we draw the line? Clearly, where there is a safety concern and where chemicals are used, but that is probably a more straightforward case. We have to make sure that it is not a barrier to people getting to work and is seen as part of structural racism.
On Amendment 293, I thank my noble friend Lord Lansley and others for mentioning the work commissioned from Sir Bruce Keogh. As many noble Lords will know, doctors who practice cosmetic surgery are regulated by the General Medical Council. I take the point made by the noble Baronesses, Lady Walmsley and Lady Finlay. I repeat that, to strengthen assurance, the GMC, in conjunction with the Royal College of Surgeons, is developing a cosmetic surgery credential. GMC-approved credentials formally recognise doctors’ expertise in specific areas of practice. The credential will aim to enhance regulation and patient protection by recognising surgeons who have the appropriate training qualifications. I do not have the exact deadlines here yet, but I can find out and write to noble Lords, probably in my write-around.
On Amendment 242, our proposed reforms will introduce a new duty on regulators to collaborate with one another and key stakeholders when making changes to how they regulate. There are many factors that we need to consider when bringing forward legislation, but the fundamental consideration must always be  public protection. The professions protected in law need to be the right ones, and the level of regulatory oversight must be proportionate to the risks to the public.
The noble Baroness, Lady Wheeler, asked about the review of professional regulators. We have commissioned KPMG to carry out an independent review of the regulatory landscape. It submitted its report at the end of last year, and the findings are now being considered. Any use of the powers provided for in Clause 142 will be subject to consultation and the approval of both Houses.
To respond to my noble friend Lady Fraser, we are committed to bringing forward a programme to reform the legislative framework and professional regulators across the UK. There are various strands to the reform programme, and we are making progress. We have received over 500 responses to the consultation and officials are analysing them. We hope to bring forward legislation on the issue this year.
Given all that, and given the public consultation and other issues, I ask noble Lords to withdraw and not press their amendments.

Lord Patel: My Lords, the Minister suggested that, to have any changes in the appointment of surgeons, the department would have to consult first. I assume that the only body it would need to consult is the Royal College of Surgeons, which I understand is sympathetic to the change. If that is the case, it is a simple matter, so can it not be consulted before Report?

Lord Kamall: If it is as straightforward as the noble Lord suggests, I will see if that can be done.

Baroness Wheeler: My Lords, I thank noble Lords for their many expert and very informative contributions. It has been a fascinating debate on a number of issues.
On specialised care services and rare diseases, I note the Minister’s comments and thank him for some of his reassurances, but there were some issues that he did not cover, particularly in relation to my noble friend’s Amendment 178. However, I welcome the dialogue that is taking place on these issues, and the recognition of their complexity, and am very hopeful that that will continue. We will take stock to see if anything else needs to come back on Report. I also thank my noble friend Lady Pitkeathley for her support on this issue.
In the general debate, noble Lords will, I am sure, follow up on the points that they made, as the noble Lord, Lord Patel, just did. I thought the contributions of my noble friend Lord Hunt and the noble Baroness, Lady Barker, on the hospital food situation, really drove home the importance of this issue. We must make progress on it and move forward.
On the title “nurse”, strong support was expected and we certainly got it from across the House. I hope that progress can be made. The issue will not go away, as the Minister knows, and neither will the determination of my noble friend Lord Hunt to pursue the issue of the availability of T3 for thyroid patients. We hope that progress can be made on that, because again it is a situation that a must be addressed.
The noble Baronesses, Lady Masham and Lady Brinton, and other noble Lords made valuable points on the vital need for a licensing regime for non-surgical cosmetic procedures, again underlining the need for urgent, step-by-step progress, and demonstrating in particular why the current situation is unacceptable. Progress can be made. As the noble Lord, Lord Lansley, pointed out, it was seen in the recent Private Members’ Bill on Botox fillers. We need progress to be made, and steadily.
Finally, on the reference to when the review of the regulatory system will be completed—the noble Baroness, Lady Walmsley, also raised this—the issue was about timescales. We know there is a review. We are told that KPMG is on the case and has delivered its report, but we need timescales and action as soon as possible.
With those comments, I beg leave to withdraw my amendment.
Amendment 164 withdrawn.
Amendment 164A not moved.
Clauses 26 and 27 agreed.

Amendment 165

Lord Hunt of Kings Heath (Lab): Moved by Lord Hunt of Kings Heath (Lab)
165: After Clause 27, insert the following new Clause—“Place based integrated care and Primary Care Commissioning Boards(1) Each place based integrated care board is to be established by regulations made by the Secretary of State for an area within an integrated care board.(2) An order establishing a place based integrated care board must provide for the constitution of the board.(3) Before making, varying or revoking an order under this section, the Secretary of State must consult—(a) the integrated care board in which the place based integrated care committee is intended to operate;(b) the relevant local authority or local authorities;(c) the integrated care partnership in which the place based integrated care committee is intended to operate;(d) the local healthwatch organisations whose areas coincide with or fall wholly or partly within the proposed area of the place based integrated care board; and(e) members of the public living within the proposed area of the place based integrated care board.(4) The place based integrated care board may arrange under a scheme of delegation from the integrated care board for the provision of such services or facilities it considers appropriate for the purposes of the health service that relate to securing the improvement—(a) in the physical and mental health of the people for whom it has responsibility, or(b) in the prevention, diagnosis and treatment in these people.(5) In imposing financial requirements on integrated care boards under Section 223GB of the National Health Service Act 2006, NHS England may give additional directions in respect of placed based integrated care committees.(6) Integrated care boards may give place based integrated care board directions as to any of the functions to which it has given delegated functions.  (7) The Schedule to the Public Bodies (Admission to Meetings) Act 1960 (bodies to which that Act applies) shall be amended as follows.(8) After paragraph 1(k), there shall be added the following sub-paragraph—“(l) Place Based Integrated Care Boards.””Member’s explanatory statementIt’s likely that ICBs will set up place based entities which may take many of the key commissioning decisions at the local/Constituency level. This amendment puts place based integrated boards on a statutory basis and subject to Parliamentary oversight and meeting in public.

Lord Hunt of Kings Heath: My Lords, my Amendments 165 and 166 are rather more focused than the last group. They are probing amendments, rather than me urging that Ministers take the specific wording of them.
One of the rather surprising characteristics of integrated care systems is that they are not defined in the Bill, although people talk about these entities all the time. The statutory parts are integrated care boards and integrated care partnerships, but much of the real power, decision-making and influence potentially lies with non-statutory groups, whose membership, governance and procedures are not regulated. These are placed-based partnerships, provider collaboratives or networks, primary care networks, or companies accredited to the health system support framework. My two amendments would put the first two of these non-statutory groups on a statutory basis. Place-based partnerships are described and supported by NHSE and the Local Government Association as the foundation of integrated care systems. I am very grateful to the policy research unit in health and social care systems and commissioning at the University of Manchester for its very helpful work on this.
In our debate on primary care, the Minister referred to his hope that integrated care boards would
“exercise functions through place-based committees”.—[Official Report, 20/1/22; col. 1852.]
It is pretty clear that many ICBs will delegate considerable responsibility to them. I can see the potential for that, but given their increased responsibilities, there are legitimate questions to be asked about how place-based committees are to be held to account. What are their governance arrangements? Who will serve on them? What are their leadership arrangements? What functions will they be allowed to carry out? The noble Earl, who I think is responding, may say that that is best left to local decision-making. I see that up to point, but rather like with ICB governance, surely some framework and safeguards need to be built around them.
A similar argument might be made in relation to provider collaboratives. Such collaboratives are essentially partnership arrangements involving two or more trusts or foundation trusts. Participation is mandated for trusts providing acute or mental health services. They are expected to be part of one or more provider collaboratives, with discretionary participation of other providers. Such collaboratives may form at supra-ICS level, may partially cover multiple ICSs and may cover multiple places. Additionally, providers may be members of multiple overlapping collaboratives. The collaboratives may contain acute or mental health members only, or  may include wider membership such as community providers and primary care. It is anticipated that they will deliver systems’ strategic priorities. The original White Paper, Integration and Innovation: Working Together to Improve Health and Social Care for All, indicates that “significant” delegation to both place level and provider collaboratives from integrated care systems is expected. It is also suggested that, in time, provider collaboratives may play a role in oversight. At Second Reading, the noble Lord, Lord Lansley, said:
“we have new provider collaboratives which, in fairness, is where the power in the NHS will lie. The Bill makes no provision for them in terms of transparency, openness or accountability”.—[Official Report, 7/12/21; col. 1789.]
This was confirmed on 2 December by the Health Service Journal:
“In the minds of most acute trust chiefs, it is provider collaboratives and groups, and not integrated care boards that will wield the greatest influence (although the former may act through their representation on the latter).”
So I want to put a few questions to the Minister. First, what degree of oversight will be exerted over the formation of these arrangements, and by whom? Secondly, if a lead provider contract is in place, or if providers agree how to spend their respective resources as a provider collaborative, who would oversee that arrangement and where would accountability lie in the delivery of outcomes or in the case of poor performance? How would it be ensured that the work of provider collaboratives took into account the interests, aims and work of the wider health and social care community, including the patient voice?
On the latter, the NHS England design framework made it clear that the involvement of patients, unpaid carers and the public is expected at place and system levels, with requirements for public meetings and published minutes in both the partnership and the NHS board. It is not specified how provider collaboratives, where significant decisions regarding the planning and provision of services may be made, will be publicly accountable.
I believe that the Government are going to discuss with noble Lords the formation and governance of integrated care boards and integrated care partnerships. I suggest that that discussion be extended to look at the position of place-based committees and provider networks, because at the end of the day Parliament is entitled to establish some kind of framework and governance and transparency arrangements without going too much into the minutiae of the detail. On that basis, I hope that the Government might be prepared to take away these amendments as part of that broader discussion. I beg to move.

Lord Lansley: My Lords, perhaps I may make two quick points. At an earlier stage in the Committee, using the example from the noble Lord, Lord Mawson, in relation to Bromley by Bow and north-east London, I asked why the legislation cannot allow clinical commissioning groups, as they have established themselves over years, to continue as place-based committees or subsidiary elements of an integrated care system. I am sure that many of them would be willing to do so; we should allow them to do exactly that, because there is otherwise a gap in relation to how large ICBs will do their place-based work.
Secondly, the noble Lord, Lord Hunt of Kings Heath, referred to what I said about provider collaboratives. I still think it. Where are we going to end up with this? It will be with NHS England having within it, as each integrated care board has within it, the provider interest and the commissioner interest. The Government purport to be abolishing the purchaser/provider split. Every Secretary of State prior to the former Secretary of State, Matt Hancock, seemed to believe in it, with the exception of Frank Dobson. There was a reason why we did that: because it is a fact. We might legislatively abolish the purchaser/provider split, but, in reality, it will exist. As my noble friend Lord Hunt of Wirral said earlier, if that conflict of interest is not properly recognised and managed, it will emerge with potentially damaging consequences. Transparency about how provider interests are to be properly managed inside the NHS is not something I yet see in the substance of the Bill. I hope that my noble friend on the Front Bench will agree to think hard about this and perhaps talk about how we might give transparency and accountability to that conflict of interest.

Baroness Tyler of Enfield: My Lords, I have added my name to Amendment 165 in the name of the noble Lord, Lord Hunt. This is a small but important group of amendments.
I have added my name to the amendment because I am interested in what is happening to primary care and particularly the voice of GPs in the new arrangements. Frankly, we are not hearing much about them. As it stands, the legislation will place NHS trusts and foundation trusts in quite a privileged position in deciding how plans are made and resources allocated. I am not quite sure where the voice of GPs comes into the new arrangements. I understand that NHS England has commissioned a review of the role of primary care in the NHS structures, but my understanding is also that it will not report until after the Bill has been passed if we continue with the current timetable. Frankly, by then, it will be a bit late to make sure that we have got the arrangements absolutely right.
It is right that primary care commissioning is undertaken at a local level by people with relevant knowledge and skills, and with the necessary experience of what primary care needs to look like at locality level. That is why it is right that the new place-based partnerships are to be given that commissioning role. However, like the noble Lord, Lord Hunt, I think it is important that these primary care commissioning arrangements are established in statute, because it is only if that happens that Parliament will be clear about the accountability arrangements and the governance and leadership. It is also important that there is real transparency in the system. At the moment, it all feels a bit opaque. I hope that the Minister can give some assurances on this point.

Lord Stevens of Birmingham: My Lords, I just wanted to respond to the last set of very important questions that have arisen. It is fair to say that the Bill increases the accountability for commissioning primary care services locally, as compared with its predecessor, the 2012 Act. That is because one consequence of having GPs represented on the clinical commissioning  groups was that clinical commissioning groups could not, therefore, be the commissioners of local primary care services, at least in statute. One had the paradox that the most local of all the services in the NHS was stripped out from the local commissioning bodies, the CCGs, and instead given nationally to NHS England, as a work-around to deal with the conflict of interest that GPs would otherwise have had in commissioning themselves on the CCGs.
In practice, the CCGs have been given the ability to influence those local commissioning arrangements but, to be clear, that is not the accountability mechanism set through the 2012 Act. What this Bill does is to improve the position, in that it is local integrated care boards that have that local commissioning responsibility for GP and other family health services, as compared with NHS England nationally.

Baroness Walmsley: My Lords, we have been reminded many times during the debates in Committee of the aims of the Bill to improve the health and well-being of the population, to improve the quality of care and to use NHS resources sustainably through integration, co-operation and collaboration. Of course, the point at which these resources are used at the coalface, known as “place” in the Bill, is in these place-based organisations. To ensure integration at this level, we are told that the ICB must create an integrated care partnership, otherwise known as a place-based integrated care board, which probably has an acronym as well. There is, however, very little detail about those, despite their crucial importance, and these amendments from the noble Lord, Lord Hunt, are an attempt to put a bit of flesh on those bones.
I put my name to Amendment 166, but I could just as easily have put it to Amendment 165. Amendment 166 says that, within the place-based partnership, there should be mandated a provider network board with duties delegated to it by the ICB. It would be under parliamentary scrutiny and have an obligation to meet in public. These networks already exist and exert considerable influence, but it is essential that they operate in this new integrated care system under a regulated constitution, with obligations to consult and financial provisions. This amendment would ensure the transparency, for which the noble Lord, Lord Lansley, called, over how well integration is operating at this very important level so that there can be proper control and accountability and scrutiny as to where the money is being spent and whether it is achieving the duties placed on all these systems by the Bill.

Baroness Thornton: I thank my noble friend for tabling these amendments; I have added my name to both of them. They are about transparency and legitimacy, raising very important questions which the Minister needs to answer.
I go back to what the noble Lord, Lord Lansley, said at Second Reading, which I think my noble friend referred to. He said that
“we have new provider collaboratives which, in fairness, is where the power in the NHS will lie. The Bill makes no provision for them in terms of transparency, openness or accountability.”—[Official Report, 7/12/21; col. 1789.]
I do not need to say any more than that. The Minister needs to answer that question, because it needs to be resolved before the Bill completes its passage.

Earl Howe: My Lords, I am grateful to the noble Lord, Lord Hunt, for bringing us back to the subject of place-based structures and taking us into the issues relating to provider networks. I hope it will be taken as a given that the Government have sympathy with the intentions behind his amendments.
On Amendment 165, we absolutely agree on the importance of place, and I hope I can provide the Committee with reassurances on that score. First, the linchpin to the accountability issue is, I suggest, the ICB constitution, which is required to set out how its functions will be discharged. That may include how functions will be carried out by committees and sub-committees, which will include place-level committees. The best size for an ICB area varies according to local circumstances, and some of the smaller ICB areas are coterminous with the local authority. In those systems, place arrangements will quite rightly look very different from the large ICB areas.
ICBs need to be clear about the expectations and roles of place-based structures, including what they are responsible for commissioning, what powers have been delegated to them, and what resources they are responsible for. The current legislation provides for the ability to establish place-based structures and set them out clearly in ICB constitutions. However, Frimley is not Cumbria, and Essex is not Manchester. We want to give ICBs the flexibility to determine structures that work best for them. To help them do that, NHS England has the power to issue guidance to ICBs on the discharge of their functions, and is working with CCGs and the current non-statutory ICSs to develop model constitutions for the future ICBs. Those constitutions will, of course, also have to be approved by NHS England before the ICB is established. This approach should achieve the right balance, because it allows us to support ICBs to develop, without the danger of putting in place further legislation which could act as a barrier to future evolution. Requiring the establishment of a separate place-based board is simply not necessary and would come at a bureaucratic cost.
I turn to Amendment 166. I appreciate the noble Lord’s concern about transparency and accountability for groups of providers working together where they are exercising functions that an ICB has delegated. I shall come on to the concern expressed by my noble friend Lord Lansley, about the purchaser/provider split. Provider collaboratives are intended to deliver the benefits of scale, with providers working together to implement best practice and reduce variation in access, experiences and outcomes for patients and populations. For example, this could involve sharing workforce and managing capacity on a wider scale. Depending on the local circumstances, such arrangements may include a delegation of ICB functions. ICBs and providers should have the flexibility, in line with guidance that will be issued by NHS England.

Baroness Thornton: Has the Minister actually seen the model constitution that will be imposed by NHS England, and does it do what he is suggesting it does? Maybe the rest of us could see it, too.

Earl Howe: My understanding is that it is work in progress—so no, I have not seen it.

Baroness Thornton: Is it not then unsatisfactory that we should complete the passage of the Bill without having sight of the constitution, so that we can be assured that the assurances that the Minister is giving us will in fact work?

Earl Howe: I do not think that is a reasonable ask by the noble Baroness, if I may say so. I am trying to describe a structure that should deliver what I am sure she wants to see—safeguards and good pointers for ICBs to make their own decisions, while also ensuring that some of the pitfalls mentioned in the debate are not fallen into. If I can let her see the work in progress, I shall certainly be glad to do so—I do not have a problem with that—but I suggest that it is not necessary for her to do that to accept the proposition that I am trying to put forward.
As I have mentioned, the Bill requires an ICB to set out in its constitution how its functions will be discharged, including any arrangements to delegate functions to provider collaboratives. Furthermore, as an additional safeguard, the Secretary of State may impose conditions on the exercise of the power through regulations.
I wholeheartedly agree with the noble Lord on the need for transparency and accountability, but—he partly forecast my reply here—we are giving the NHS the flexibility to determine the structures that work best for individual areas. That is not something we are foisting upon the NHS; I draw the Committee’s attention to the NHS Confederation’s urging to
“embrace a flexible and permissive approach that considers a range of models that will work in varied geographies and contexts.”
We therefore come to the issue of accountability that the noble Lord rightly raised. Where NHS England or an ICB delegates a function as part of a collaborative arrangement, it will be expected to take appropriate steps to ensure that the function is being effectively carried out on its behalf. That will include the power to set the terms of delegation agreements, which can impose terms as to how the delegation powers can be exercised. The Bill includes a number of safeguards; for example, as I have mentioned, NHS England will have a power to issue statutory guidance in relation to delegated functions and joint working arrangements, and there will be transparency through the constitutions.
My noble friend Lord Lansley understandably raised the issue of the purchaser-provider split. As he knows, the Bill does not abolish that split, but I understand the point of his question. I think I can best answer it by saying that ICBs or NHS England will still bear ultimate responsibility for protecting the interests of patients and taxpayers, and will be able to oversee providers’ exercise of delegated functions through the terms of the delegation agreement and the performance assessment functions. Providers can be given greater flexibility to design services around their understanding of patient needs. That will happen only where ICBs are satisfied that quality standards continue to be met and the function is being effectively carried out.
My noble friend also suggested that we might consider keeping CCGs to enable the local assessment of patient need and the services that are required to be retained in the commissioning arrangements. Instead of that, we need to go back to the functions of the health and well-being boards and the ICPs. The system will enable the kinds of granular insights, described earlier by the noble Lord, Lord Mawson, that will inform strategies for the whole population.
We come to the question that noble Lords asked earlier: why do we have health and well-being boards and ICPs? The best answer is that they perform complementary functions. The ICP will be responsible for developing an integrated care strategy for the whole population within the geographical footprint of its relevant ICB, but that strategy should be informed by local assessments of needs developed by health and well-being boards at the local level so that the system plans reflect the needs of every community within the area. That is how the circle is intended to be squared.
Not all of my reassurances today have landed well, but I hope I have provided reassurance to the Committee that place-based commissioning structures are already an intention and sufficiently catered for in the current provisions, and that the noble Lord, Lord Hunt, will feel able to withdraw his amendment.

Baroness Tyler of Enfield: Before the Minister sits down, is he in a position to answer the question I asked about the timing of the review regarding the position of GPs within this new set of arrangements?

Earl Howe: I shall need to write to the noble Baroness about that timing because I do not have it. I meant to say that I was grateful to the noble Lord, Lord Stevens, for his intervention on the way in which we hope that primary care will be better built into the commissioning arrangements than it has been up to now.

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Earl and to the noble Baroness, Lady Tyler, for her helpful interventions on primary care, which were very important.
In essence, the noble Earl said that we should be reassured because, either through the constitution of the ICB or through the more general guidance given out by NHS England, appropriate accountability and monitoring arrangements will be put in place. I accept that, but there are questions about the guidance and the constitution which mean that we may well want to come back. I think it would be appropriate for Parliament to give some oversight approval to that.
We are a bit jaundiced about NHS England guidance because we still cannot get hold of the guidance put out 10 or so days ago about the make-up of ICBs and the new timetable, which I mentioned on our previous Committee day. It is on something called nhs.net but not even our Library can get hold of it because there is a security wall around it, and I do not understand why it has not been put into the public domain. That is why we are a bit wary of any guidance that is going to be put out. I cannot resist saying that I hope the guidance is not going to say that local authority councillors  cannot be on the place-based committees, because that would be a mistake. It could be helpful in some places for them to be so appointed.
On the more general issue of purchaser-provider tension, we have had a really interesting debate. The noble Lord, Lord Lansley, said that every Secretary of State apart from Frank Dobson, of blessed memory—my first ministerial job was serving under Frank before he was persuaded, if that is the word, by Tony Blair’s persuasive skills to go and fight Ken Livingstone for the mayorship of London—believed in it.
The point is that, whatever you call it, there is clearly going to be a relationship between the organisations of the NHS that have the dosh handed out by the department and those organisations that provide the services. There is going to be an unnecessary tension and an issue of accountability and monitoring. The puzzle that some of us have is how that is going to work within the integrated care boards when the big providers are sitting around the table. I think the clue was given in the Health Service Journal, which said:
“In the minds of most acute trust chiefs, it is provider collaboratives and groups, and not integrated care boards that will wield the greatest influence”—
an interesting phrase. I suspect the real dynamic is going to be between those collaboratives and the chair and chief executive of the integrated care board, while the board itself, which looks as though it is going to be very large, will be the legitimiser of those discussions and tensions. Still, it is a bit of a strange beast.
The noble Lord, Lord Stevens, raised the issue of CCGs and the fact that, because they were essentially membership organisations of GPs, they could not do the nitty-gritty of managing the contracts, which in the end was kind of half-devolved down to them but with accountability held at the NHS England level. That illustrates the problem of having providers and commissioners around the same table. For very good reasons people want to encourage them to integrate, but that poses its own challenges.
I think it is inevitable that we are going to come back to this issue. This has been a very good debate and I am most grateful. I beg leave to withdraw the amendment.
Amendment 165 withdrawn.
Amendment 166 not moved.

  
Schedule 4: Integrated care system: minor and consequential amendments
  

Amendment 167 not moved.
Schedule 4 agreed.
Clause 28 agreed.
Schedule 5 agreed.
Clauses 29 to 34 agreed.
Amendments 168 and 169 not moved.

  
Clause 35: Report on assessing and meeting workforce needs
  

Amendments 170 to 172 not moved.
Clause 35 agreed.
Amendments 173 and 174 not moved.
Clauses 36 to 38 agreed.

  
Clause 39: General power to direct NHS England

Amendment 174A

Lord Hunt of Kings Heath: Moved by Lord Hunt of Kings Heath
174A: Clause 39, page 47, line 17, at end insert—“(4A) A direction under subsection (1) may be given only in relation to a particular instance, not generally.(4B) A direction under subsection (1) must provide for the direction to cease to have effect on a date specified in the direction, which must be no later than one year from the date the direction was given.”Member’s explanatory statementThis amendment, along with the other amendments to Clause 39 in the name of Lord Hunt of Kings Heath, would reduce the scope of the Secretary of State powers to direct NHS England by adding safeguards and additional exceptions.

Lord Hunt of Kings Heath: My Lords, we come to Clause 39, which I think is one of the most significant ways in which the Bill will increase the powers of the Secretary of State over the NHS. The clause gives a general power of direction over NHS England in the exercise of its functions. It is a very significant change from the legislation the noble Lord, Lord Lansley, put through in 2011-12. It also is clear that many NHS bodies are, like the Nuffield Trust,
“concerned that these new powers will result in a more politicised NHS, with ministers dragged into micromanaging how local services work.”
I do not think you can consider this clause without considering further clauses in the next group, led by the noble Baroness, Lady Cumberlege, in relation to the power of the Secretary of State to intervene at any time in proposals to change services. In addition, Part 3 of the Bill gives the Secretary of State the power to move responsibilities between several arm’s-length bodies in health and to abolish them. We have already had the CQC debate today, about an increase in the Secretary of State’s capacity for intervention. There is also the question of the regulators, which will be discussed later, which again leads to the individual professional regulators, which, again, the Secretary of State can abolish.
Although I am going to talk about the general direction, I do not think you can do that without thinking about the other accretions of power that the Bill takes. Together, I believe it is a fundamental difference —a change in philosophy—from the 2012 legislation. NHS Providers, with which I have discussed this extensively, is concerned. As it says:
“Clinical and operational independence must be maintained in order to ensure equity for patients within the service; the best use of constrained funding; and clinical leadership with regard to prioritisation and patient care.”
Although I do not want to completely open up this debate, I have to say that the allegations made by Conservative MPs about threats made in the last few days by Government Whips, over the funding of services, are very apposite to how a power direction might be used by Ministers under this Bill.
Let me explain my amendments. Amendment 174A would mean that a direction by the Secretary of State
“may be given only in relation to a particular instance, not generally … A direction … must provide for the direction to cease to have effect on a date specified in the direction, which must be no later than one year from the date the direction was given.”
This really reflects the reality that the public interest is not static and objective circumstances may change. If, after a year, the Secretary of State believes the direction is still necessary, they can renew it, but there has to be an explanation of why it remains in the public interest.
Amendment 174B would mean that a direction must include a statement of
“why the Secretary of State believes the direction will be in the best interests of the public.”
The public interest test is based on the principle of them carrying out their duties. Ministers, civil servants and public authorities must act demonstrably on behalf of the public as a whole, not on behalf of individuals or private interests. This constitutes another check and balance that needs to be put in place.
Amendment 175A would mean:
“The Secretary of State must publish any direction … at the time that the direction is issued and lay it before Parliament.”
Additionally, I would like the Secretary of State to
“publish an impact assessment … at the time the direction is issued or within that financial year.”
Again, transparency is essential to ensure all the required processes and safeguards are being adhered to during the decision-making process.
Amendment 176A would mean that the power could not be used to direct NHS England to make a particular procurement decision or grant of NHS funds to a particular person. This means the power could not be used to undermine the integrity of a fair-share allocation to local systems by unfairly seeking to amend allocations to a particular part of the country, contrary to the allocation formula.
Amendment 176A would remove existing procurement requirements, with the intention to move away from the competitive tending by default in favour of a more collaborative approach to planning and delivering services. For example, ICBs will have the ability to continue with an existing provider while having to go through a competitive procurement process, under the Bill. We discussed this on our last Committee day.
While the Secretary of State sets the overall budget for NHS England, they should not have the power to circumvent and interfere with this new procurement regime. The power of direction conferred on the Secretary of State in Clause 39 should not be used to interfere in NHS England’s operational independence and direct it to make a particular procurement decision.
My Amendment 176A concerns the weighted allocation formula. NHS allocations are underpinned by a weighted capitation formula, which calculates the target fair share of the national budget for local authorities.  The ACRA makes recommendations on the optimum geographical distribution of health spending, advising the Secretary of State on public health allocations and the chief executive of NHS England on NHS allocations. The power of direction in the Bill should not be used to undermine the integrity of fair-share allocations to local systems.
The noble Lord may say, “This is all fine and dandy, because the Secretary of State will only ever use this power of direction on very few occasions.” My view, however, is that this is such a significant difference from current legislation that safeguards ought to be set out in legislation. In reality, I have to say that once you have a power of direction, it changes the relationship between the Secretary of State and NHS England in any case, because if NHS England knows that the Secretary of State has a power of direction, it is bound to take note of that in terms of their relationship and the instructions and advice the Secretary of State may give it. I am not naive enough to think that my amendments would necessarily prevent undue involvement by Ministers in the operational activities of NHS England, but I do think they would go some way to providing some reassurance.
Again, I say that you cannot consider this group of amendments without taking account of the noble Baroness’s group of amendments, which are equally important, and the other accretions of power that the Minister is taking. I hope the Minister will give a proper justification—I have not yet heard one—for why the Secretary of State feels the need to take these powers. I beg to move.

Lord Lansley: My Lords, I shall intervene relatively briefly. The noble Lord, Lord Hunt, quite rightly said that this is a significant departure from the intentions of the 2012 legislation. The 2021 Act, among other things, created the body that is now NHS England and gave it independence. None of that independence was intended to mean, nor has proven to, that it was not responsive to even the day-to-day wishes of a Secretary of State, as I am sure the noble Lord, Lord Stevens, would verify. What it did put in statute was that, if the Secretary of State wants to set something as an objective of NHS England, they put it in the mandate. If the Secretary of State requires a change to those objectives, they publish a revision to the mandate.
Going beyond it is, I think, the product of circumstances where we had a Secretary of State who was encountering an emergency and thought he could press lots of buttons and things would happen, but pressed some and they did not. I think, even in his experience, that was more outside NHS England than inside it— I may be wrong, but that was certainly my impression. The point is that the Secretary of State did not even realise what powers he had in an emergency; they are all there and he was not required to change the mandate, because it was an emergency. In a public health emergency, none of this, strictly speaking, is within the same bounds.
Ministers have quite rightly said that this is the Bill the NHS asked for. But Clause 39 is not the clause that the NHS asked for; it is the opposite of what it is asking for. There are many practical issues. The noble Lord, Lord Hunt, is right; if it appears, including to  the senior people and bright youngsters, that power is going to shift from NHS England back to the Department of Health and Social Care, they will go and work in the department. One of the things I was most pleased about was that some of the brightest and best, including civil servants in the department who I knew well, went to work in NHS England, because they thought, “This is a great future.” That is terrific, because one of the problems was that NHS managers were being imported into the Department of Health, rather than bright policymakers going to the NHS. The NHS is too important an institution for it not to have the best possible policymakers under its own purview.
The noble Lord, Lord Hunt, and the noble Baronesses, Lady Thornton and Lady Walmsley, have done a sterling job in trying to mitigate a general power of direction for the Secretary of State. Frankly, I have not heard a case for it, it is contrary to where we are and where we need to go, and the simplest thing is to simply take Clause 39 out of the Bill.

Lord Warner: My Lords, it is a delight to follow the noble Lords, Lord Lansley and Lord Hunt, on this set of amendments, with which I totally agree. I want to dilate for a few moments on the realpolitik of being a Minister in the great, august organisation called the Department of Health and Social Care. I can say some things that the noble Lord, Lord Lansley, as a former elected Minister, possibly cannot.
When I ceased to be a Parliamentary Secretary and was promoted to work with the big boys and girls as a Minister of State, and had to deal with issues such as reconfiguration, poor performance and so forth, I became used to regularly meeting elected MPs who wanted to tell me about the errors of their ways in decisions that had been taken in the public interest. There was a steady flow of them, which, if I may say, tended to get bigger the nearer you got to an election. If people wanted to go through the archives, I would refer them to the history of Lewisham Hospital and of Chase Farm Hospital, to name but two.
Very often in these situations, it is not about closing a whole hospital but about re-engineering—we will come to some of this in the next group. I give the example of stroke services in London. It is re-engineering a particular set of services, which the local MP is then put up for trying to ensure that change does not happen. That is where you need to help Ministers do the right thing, when it is in the public interest to make changes. The amendments from the noble Lord, Lord Hunt, help Ministers do the right thing.
The point the noble Lord, Lord Lansley, made is absolutely valid. In many of these circumstances, it becomes very difficult if you are an elected Minister—as distinct from an appointed Minister, who does not have to face the electorate—to resist some of the local pressures to avoid change which would be disadvantageous to a local hospital. For those realpolitik reasons, I think the noble Lord, Lord Hunt, is on the right track and we should support the amendments.

Baroness Walmsley: My Lords, I support the noble Lord, Lord Lansley. Clauses 39 and 64 give the widest possible powers of intervention to the Secretary  of State and even the power to delegate that power to someone else. The noble Lord, Lord Hunt, and other noble Lords clearly believe that the Government are going too far, hence the large number of amendments in this and the next group.
I believe that the Clause 39 powers could justifiably be used only in the case of some cataclysmic failure of the NHS. There are four questions to ask. Is it possible that the Secretary of State would ever need these powers of intervention at an operational level, given that he already has the mandate? Does the Secretary of State have any other powers which could be used prior to this atomic bomb of a power? Has the NHS survived well enough over the last 10 years without the Secretary of State having such powers? Does Clause 39 upset the balance between the Secretary of State and the autonomy of NHS England? I think the answers are no, yes, yes and yes—your Lordships can work it out.
The Health and Social Care Act 2012 removed the Secretary of State from this sort of meddling. I thought at the time that it might also avoid him or her taking the blame for failure, but that was just me being cynical and there has actually been no failure of political accountability over the last 10 years. The ninth report of the House of Lords Constitution Committee refers to this issue. It notes that, in 2011, it
“raised concerns that that Bill could erode ministerial responsibility due to the proposed duty on the Secretary of State to promote autonomy for persons exercising functions in relation to the health service. What is now section 5 of the Health and Social Care Act 2012 was amended, such that the Secretary of State instead must have regard to the desirability of securing autonomy. This helps ensure a balance between enabling those providing health care services to deliver services in a manner that they consider appropriate, whilst ensuring ministerial responsibility.”
The Constitution Committee believes that, in combination with Clause 64, the powers taken for the Secretary of State by Clause 39 would undermine that autonomy and upset the balance. They also risk
“undermining accountability by making it more difficult to understand which body is responsible for a particular function of the NHS.”
The fact is that the Secretary of State already has the power to change the mandate of NHS England—as the noble Lord, Lord Lansley, pointed out—to adjust its funding or to bring political pressure upon it to behave in certain ways, without the need for the powers in this clause. Indeed, I think it would be very unwise to use these powers, and he or she will certainly get the blame if it all goes pear-shaped. The Bill, as has already been pointed out in some detail by noble Lords, the DPRRC and the Constitution Committee, gives the Government considerable regulatory and guidance powers, about half of which allow no parliamentary scrutiny at all. Does that not give the Secretary of State enough ability to ensure things are done in the way the Government wish? The Secretary of State already wants to be Henry VIII; does he also want to be King Herod?
The Bill lays out in some considerable detail the powers and duties of the new integrated care systems, and the Government tell us they do not want to be prescriptive as to how these duties should be carried out—yet here, we are expected to rubber-stamp an enormous set of powers which could do absolutely the  opposite. Clause 39 is not needed. In addition to all the regulatory and guidance powers in the Bill, the Government still hold the overall purse strings and can always provide additional resources after the initial budgets have been set if particular needs arise. The Secretary of State should then leave it to those who have been so carefully chosen and so rigorously regulated to get on with the job. I support removing Clause 39.

Baroness Thornton: My Lords, I am nearly convinced that I should have put my name to the opposition to Clause 39 standing part of the Bill.
We have had a very informed and interesting debate which comes to the heart of the balances of power that the Bill seeks to change. My noble friend Lord Hunt set out concerns over Clause 39, which gives general powers of direction to NHS England. Amendments 174A, 174B, 175A, 176A and 175 seek to mitigate the power and to put in safeguards. This is very much in tune with concerns expressed across the Committee, by the Delegated Powers and Regulatory Reform Committee, and by the Constitution Committee. Our amendments stop short of that from the noble Lord, Lord Lansley, and the noble Baroness, Lady Walmsley, but theirs is a more elegant solution in many ways. However, the Minister will need to explain why some powers of direction are required, and we on these Benches will listen very carefully indeed.
This is all part of the balance between the responsibilities of the Secretary of State, especially to Parliament, and the powers the Secretary of State has to enable them to discharge their duties. If there is a clear and consistent solution to this, we have yet to hear it. In a way, we are repeating debates we have already had in Committee. The Bill has been severely criticised as a clear and disturbing illustration of disguised legislation, and it will need to be changed. We will need to move on to proper talks about how to do that.
On whether Clause 64 should stand part of the Bill, the issue is a different one. The 2012 Act introduced the formal notion of NHS bodies having autonomy, and since 2003, foundation trusts have had some degree of at least theoretical autonomy. But in the years of austerity a lot of that has gone, and all trusts of all kinds are simply struggling to manage day by day. It may have been the noble Lord, Lord Stevens, who observed that the difference between a trust and a foundation trust was a distinction without a difference. For some years, the process of managing foundation trusts has been the same as for trusts.
We have been hearing in our recent deliberations about local flexibilities. Our scepticism about this has been strong, because it appears—and this group of amendments addresses this—that any flexibility will be as great as NHS England permits. Let us not reject autonomy. Why remove the duties to promote autonomy? Why not replace them, for example, as the noble Lord, Lord Mawson, said, with a duty around subsidiarity and localism?
I will not repeat what was said by the Constitution Committee, but it was very critical of the powers that the Secretary of State seeks to take. Indeed, I raise a different issue: the fact that I thought NHS England was undertaking implementation of the Bill before it has finished its passage through Parliament. It is all  part of the same pattern. Since we have an undertaking from the Minister to respond to that concern, we will look for an undertaking from him to provide an explanation and perhaps further discussion about why he wants autonomy removed from the Bill.

Lord Kamall: I thank all noble Lords for their amendments and for challenging the issues around the power of direction. We believe that we must have the right framework for national oversight of our health system. Following the merger of NHS England with Monitor and the Trust Development Authority, NHS England will be one of the largest arm’s-length bodies in government, responsible for over £130 billion of taxpayers’ money. Without this power, we would be expanding the functions and responsibilities of NHS England without ensuring that there are enhanced accountability measures in place.
Accountability must run from NHS England to Ministers, from Ministers to Parliament, and from Parliament to the public. This is what the power of direction supports. Indeed, a number of politicians from different sides agree that if you walked out into Parliament Square and asked people who is responsible, they would expect us to have answers. Therefore, we want to make sure there is the appropriate power of responsibility.
I also want to give reassurances that we expect the situations where the Government issue directions to NHS England to be rare. Where it does happen, Ministers will of course ensure that the direction is clear, appropriate and has suitable timeframes. It is paramount that this power can be deployed quickly when required, and limiting it to specific instances, or prescribing a time limit as to its efficacy, would undermine the intent of these provisions.
That said, we agree it would be inappropriate to use this power to intervene in clinical decisions, and we have specifically exempted this in the Bill. For example, we have made sure that a direction cannot be given in relation to drugs, medicines or—interestingly, given our previous discussions—on treatments that NICE has not recommended or issued guidance on. The noble Baroness, Lady Thornton, and the noble Lord, Lord Hunt, rightly questioned the draft guidance that NHS England has given—we are trying to find a copy of that. However, we recognise the unique role the Secretary of State for Health and Social Care plays in the system. The Secretary of State could use the powers to request to see the guidance developed by NHS England before it is published, to ensure that NHS England is working effectively with other parts of the system, such as local authorities, given the concerns that both the noble Baroness, Lady Thornton, and the noble Lord, Lord Hunt, raised.
On Amendments 176A and 174A, we have already included a number of exemptions to the power of direction in the Bill to ensure the Secretary of State is not able to intervene in day-to-day operational matters. There is also no intention that the power will be used to direct NHS England on procurement matters. Any decision to exercise the power will be subject to and guided by general public law principles and general statutory duties. This means, for example, that Ministers will have to use regulations where they exist, as they do  for procurement, and that the Secretary of State cannot direct NHS England to breach procurement regulations, since this would be unlawful.
In relation to allocations to ICBs, NHS England uses a formula to allocate NHS resources to different parts of the country based on long-standing principles of equal opportunity of access for equal needs and informed by the independent Advisory Committee on Resource Allocation. There is no intention to use the power to interfere in this process.
In relation to local organisations, I make the point that the Bill will provide more practical autonomy at a local level by strengthening local leadership and empowering local organisations to make decisions about their population, while also allowing for national accountability. This is the approach we want to take with this power: directing NHS England only on the functions it holds in respect of local bodies, to provide necessary support and assistance to them, especially if they are failing. It is also vital that a power of this nature is accompanied with appropriate safeguards and transparency requirements.
On Amendment 174B, which relates to public interest, the clause already ensures that all directions must be made in the public interest.
On Amendment 175A, the noble Lord, Lord Hunt, has called for directions to be laid in Parliament. It is already the case that any direction issued must be made in writing and will have to be published. This will allow Parliament to hold Ministers to account for use of this power.
On Amendment 175, Ministers already work in partnership with NHS England, and any direction made would come after close working and considered discussion. NHS England will continue to make the vast majority of its decisions without direction, consulting the Government as it needs to. We believe that this power provides additional transparency by ensuring that where Ministers direct NHS England, it is clear, published and available for scrutiny by all. Any direction will come after a considered discussion with NHS England and advice, including on the impact and deliverability of such a direction. Ministers will of course consider, with NHS England and others, that the priorities being set are the right ones and whether they are affordable. However, it is important that we do not put in place too bureaucratic a structure that would bind Ministers’ hands when decisions have to be made quickly.
I end by addressing the questions put forward by my noble friend Lord Lansley and the noble Baroness, Lady Walmsley, about Clauses 39 and 64 being removed from the Bill. Clause 39 is part of our ambition to put increased accountability for the Secretary of State at the heart of these proposals while committing to the NHS’s clinical and day-to-day operational independence. We reiterate that the power will add to the existing ways that the Secretary of State and NHS England work together. The mandate to NHS England, which has been an established means of providing direction since 2013, will continue to be the main place for strategic direction-setting.

Lord Lansley: Let me give my noble friend one simple example of how this could shift decision-making from NHS bodies to the Secretary of State. We discussed previously, in an earlier group, the availability of in vitro fertilisation services. There will be pressure on the Secretary of State to issue a direction that the NICE recommended availability of in vitro fertilisation services should be provided. By what means is the Secretary of State going to say, “No, I can’t issue such a direction”? It is entirely within his power to do so. The pressures will all be on the Secretary of State to issue directions to do things that the NHS locally may choose or choose not to do. The power will shift. Is he aware of what he is wishing for?

Lord Warner: Before the Minister answers that question, could I add another? We have had 10 years’ experience of NHS England under three chief executives and a number of different chairmen. Can the Minister give any examples of where the powers the noble Lord, Lord Lansley, gave the Secretary of State have been inadequate for them to give direction to NHS England?

Lord Kamall: The Secretary of State cannot issue a direction to CCGs or ICBs on any of this using this power. We have been clear that direction cannot be given in relation to drugs, medicines or on treatments that NICE has recommended or issued guidance on. I gave the example of where we want this guidance—with the draft guidelines published for ICBs. The Secretary of State would be able to intervene and ask to see that guidance—

Lord Lansley: I am sorry to interrupt my noble friend again but let us be clear: the Secretary of State would be asked to give a direction in line with NHS guidance. There is nothing in the exception in Clause 39 which says that the Secretary of State cannot give such a direction.

Lord Kamall: If my noble friend will allow me, I will have to consider that and write, and make that available to all noble Lords.
We have included a number of exceptions to the power of direction in the Bill to ensure that the Secretary of State is not able to intervene in day-to-day operational matters. For example, there is no intention to use the power to direct NHS England on procurement matters.
On Clause 64, the rationale for removing these duties is twofold. First, the pandemic has highlighted the importance of different parts of the health and care system working together. The clause removes some barriers in legislation that hinder collaboration between system partners. It facilitates collaboration between NHS England and system partners and enables broader thinking about the interests of the wider health system. Secondly, removing the Secretary of State’s duty to promote autonomy will put increased accountability at the heart of the Bill.
Overall, these clauses encompass flexibility, allowing Ministers to act quickly and set direction, while balanced with safeguards and transparency requirements to ensure that they can be held to account. I understand that there are a number of concerns about this group  of amendments and others. I am sure we will have a number of discussions, but in the meantime, I ask noble Lords not to press their amendments.

Lord Hunt of Kings Heath: My Lords, this has been a very significant debate, because when the Minister referred to the fact that Ministers needed to have the answers, I realised that the intention is to go back to command and control from the centre. It was quite clear: that is the intention. I think that is very depressing, because I do not believe that the NHS is going to benefit at all. When he said that this will strengthen local accountability—oh no, it will not. There is no local accountability whatever in this structure. I am sorry to say this again, but the fact that the Government are taking local authority councillors out of ICBs is a visible demonstration that this is a centrally driven health service from the Department of Health.
In this debate and the next, we have two parallel lines of thinking. I have attempted to produce some constructive amendments to try to constrain the powers of the Secretary of State. The noble Lord, Lord Lansley, and the noble Baroness, Lady Walmsley—and I think my noble friend Lady Thornton—think that this is such a wrong route to go down that we should take Clause 39 out. I am absolutely persuaded now that that is the right approach. From what is being said, it is clear that whatever constraint we put in, basically Ministers want to run the NHS again. The same argument relates to Clause 40, because, again, the noble Baroness, Lady Cumberlege, has tabled what I believe are constructive amendments, and then there is a stand part debate.
The moment that the Government take this power, they will be expected to answer for everything that happens. We will expect it here. They will not be able to say, “This is a matter now for NHS England”—oh no, it is not. It is a matter for the Government. The moment the Government have power of direction, they change the whole dynamic and relationship.
We have said enough now, but I urge the Government to think again on this. I think that they do not understand the risk they take by going down this route. Having said that, I beg leave to withdraw my amendment.
Amendment 174A withdrawn.
House resumed. Committee to begin again not before 7.15 pm.

Judicial Review and Courts Bill
 - First Reading

The Bill was brought from the Commons, read a first time and ordered to be printed.

Ukraine
 - Statement

The following Statement was made in the House of Commons on Tuesday 25 January.
“With permission, Mr Speaker, I will make a Statement about the United Kingdom’s response to the situation in Ukraine. This winter, we have witnessed a spectacle that we hoped had been banished from our continent: a large and powerful country massing troops and tanks on the border of a neighbour with the obvious threat of invading. Russia has, of course, already attacked Ukraine, illegally annexing 10,000 square miles of her territory in 2014 and igniting a war in the Donbass region. Ukraine has scarcely known a day of peace ever since. Now, Ukraine faces the danger of a renewed invasion and, this time, the force arrayed on Ukraine’s frontier comprises over 100,000 troops—far bigger than anything that Russia has deployed against her before. If the worst happens and the destructive firepower of the Russian army were to engulf Ukraine’s towns and cities, I shudder to contemplate the tragedy that would ensue.
Ukrainians have every moral and legal right to defend their country, and I believe that their resistance would be dogged and tenacious and the bloodshed comparable to the first war in Chechnya, or Bosnia, or any other conflict that Europe has endured since 1945. No one would gain from such a catastrophe. Russia would create a wasteland in a country that, as she continuously reminds us, is composed of fellow Slavs, and Russia would never be able to call it peace.
For months, Britain has worked in lockstep with the United States and our allies across Europe to avoid such a disaster. We have sought to combine dialogue with deterrence, emphasising how a united western alliance would exact a forbidding price for any Russian incursion into Ukraine, including by imposing heavy economic sanctions. At the same time we stand ready, as we always have, to address any legitimate Russian concerns through honest diplomacy.
On 13 December, I spoke to President Putin, and I stressed that NATO had no thought of encircling or otherwise threatening his country, and that Russia enjoyed as much right as any other state to live in peace and security. But, as I said to him, Ukraine also enjoys an equal and symmetrical right to that of Russia, and I said that any attack on his neighbour would be followed by tougher sanctions against Russia, further steps to help Ukraine defend herself and an increased NATO presence to protect our allies on NATO’s eastern flank. The truth is that Russia’s goal is to keep NATO forces away from her borders, and if that is Russia’s goal, then invading Ukraine could scarcely be more counterproductive.
My right honourable friends the Foreign and Defence Secretaries have both conveyed the same message to President Putin, and I am of course prepared and ready to speak to him again. Meanwhile, the American deputy Secretary of State met her Russian counterpart in Geneva on 10 January, and the NATO-Russia Council gathered two days later, as the House knows. The American Secretary of State, Antony Blinken, met the Russian Foreign Minister last Friday, and the US  Administration have confirmed President Biden’s willingness to have another meeting with President Putin, continuing the bilateral dialogue they began last year.
But credible deterrence is the other side of the coin. Last night, I held a virtual meeting with President Biden, President Macron, Chancellor Scholz, President Duda, Prime Minister Draghi, Secretary-General Stoltenberg, President Michel and President von der Leyen. We agreed that we would respond in unison to any Russian attack on Ukraine—in unison—by imposing co-ordinated and severe economic sanctions heavier than anything we have done before against Russia, and we agreed on the necessity of finalising these measures as swiftly as possible in order to maximise their deterrent effect.
We in the UK will not hesitate to toughen our national sanctions against Russia in response to whatever President Putin may do, and the House will soon hear more on this from my right honourable friend the Foreign Secretary. We have already declassified compelling intelligence exposing Russian intent to install a puppet regime in Ukraine, and we will continue to disclose any Russian use of cyberattacks, false flag operations or disinformation.
Amid all these pressures, Ukraine asks for nothing except to be allowed to live in peace and to seek her own alliances, as every sovereign country has a right to do. Last week, the UK acted to strengthen Ukraine’s ability to defend her soil by supplying anti-armour missiles and deploying a small training team of British personnel, in addition to the work of Operation Orbital, which, as the House will know, has trained 21,000 Ukrainian troops since 2015. Yesterday, we took the responsible precaution of temporarily withdrawing some staff and dependants from the British embassy in Kiev, although I emphasise that the embassy remains open and will continue to provide consular assistance for British nationals in Ukraine, and I am particularly grateful for the dedication of our ambassador in Kiev, Melinda Simmons.
I commend our NATO allies for the steps they have taken and are taking to protect the eastern flank of the alliance. Denmark is sending a frigate to the Baltic and deploying four F16s to Lithuania to join NATO’s long-standing air policing mission; France has expressed its readiness to send troops to Romania under NATO command; and the United States has raised the alert level of 8,500 combat troops, preparing to deploy them in Europe at short notice. The British Army leads the NATO battlegroup in Estonia, and if Russia invades Ukraine we would look to contribute to any new NATO deployments to protect our allies in Europe.
In every contact with Russia, the UK and our allies have stressed our unity and our adherence to vital points of principle. We cannot bargain away the vision of a Europe whole and free that emerged in those amazing years from 1989 to 1991, healing the division of our continent by the Iron Curtain. We will not reopen that divide by agreeing to overturn the European security order because Russia has placed a gun to Ukraine’s head, nor can we accept the doctrine implicit in Russian proposals that all states are sovereign but some are more sovereign than others.
The draft treaty published by Russia in December would divide our continent once again between free nations and countries whose foreign and defence policies are explicitly constrained by the Kremlin in ways that Russia would never accept for herself. More than half of Europe, including a dozen or more members of NATO and of the European Union, would be only partially sovereign and required to seek the Kremlin’s approval before inviting any military personnel from NATO countries on to their soil. The Czech Republic—at the very heart of Europe, hundreds of miles from Russia—would have to ask the Kremlin for permission if she wanted to invite a company of German infantry to join an exercise or even to help with flood defences.
There is nothing new about large and powerful nations using the threat of brute force to terrify reasonable people into giving way to otherwise completely unacceptable demands, but if President Putin were to choose the path of bloodshed and destruction, he must realise that it would be both tragic and futile. Nor should we allow him to believe that he could easily take some smaller portion of Ukraine to salami-slice, because the resistance will be ferocious.
Anyone who has been to Kiev, as I have, and has stood by the wall of remembrance and studied the portraits of nearly 4,500 Ukrainians who have died in defence of their country since 2014—the total death toll stands in excess of 14,000—will know that the Ukrainians are determined to fight and have become steadily more skilled at guerrilla warfare. If Russia pursues this path, many Russian mothers’ sons will not be coming home. The response in the international community would be the same and the pain that will be inflicted on the Russian economy will be the same.
When I spoke to President Putin, I reminded him that at crucial moments in history, Britain and Russia have stood together. The only reason why both our countries are permanent members of the UN Security Council is the heroism of Soviet soldiers in the struggle against fascism, side by side with ourselves. I believe that all Russia’s fears could yet be allayed and we could find a path to mutual security through patient and principled diplomacy, provided that President Putin avoids the trap of starting a terrible war—a war that I believe would earn and deserve the condemnation of history. I commend this Statement to the House.”

Baroness Smith of Basildon: My Lords, this is one of those occasions where we start with questions because the Statement is not being repeated. I am sorry not to have the Statement repeated today because it is perhaps one of the very few occasions these days where there is, rightly, a very high degree of agreement between the Government and the Opposition, so the noble Baroness may have enjoyed repeating it on this occasion.
It is also significant that this issue was one of the questions when I was a panellist on BBC Radio 4’s “Any Questions?” programme last Friday. The audience response, first in putting forward that question and then their response to the answers, really highlighted what I think is genuine public concern on this issue.
Earlier today, I watched one of those live video film cams from Odessa. All of us have heard and seen interviews with those in Odessa, Kiev and other areas of Ukraine. People are trying to go about their daily lives and their work, but at the same time, they are living in fear of a Russian invasion as 100,000 troops with tanks and missiles hover at the borders.
Observing all this reminds me, and may remind others, just a little of reading George Orwell’s 1939 novel Coming Up for Air, where there is a pending war clearly in the atmosphere of everyday life. For those now living in Ukraine, it is more immediate and very much at their door. The Russian presence on the borders is unacceptable and unjustified aggression, and we have to be resolute in our total solidarity with Ukraine, with unreserved support for the country’s territorial integrity, sovereignty and independence. As the risk of conflict escalates, we support attempts at negotiation to de-escalate the current situation.
However, this Russian intimidation has not occurred in a vacuum. The annexation of Crimea and support for separatist conflict in Donbass illustrates why we should be so concerned at this further Russian aggression. We welcome all steps, as outlined in the Statement, to bolster Ukraine’s defence capabilities alongside those global efforts to find a diplomatic solution. International solidarity with Ukraine is crucial. Putin will seize on and exploit any division. Russia must be aware that its actions provoke unity that will have consequences both for its economy and its place in the world.
Ministers must prepare for all potential next steps, and that means working with targeted sanctions with allies to confront Russia’s access to the international financial system. Globally agreed sanctions are one of the most effective tools at our disposal, but they have to be agreed and implemented multilaterally. On that specific point, can the noble Baroness the Leader outline how the UK is working with our NATO and European allies to ensure these sanctions are readily drafted and able to be implemented?
On energy, the UK and Europe must also consider our overreliance on Russian energy supplies, including the proposals for the Nord Stream 2 pipeline which could fuel—bit of a pun there—even further dependency. On that point, can the noble Baroness the Leader confirm what recent steps the Government have taken to press for the cancellation of Nord Stream 2? Given recent reports that the United States is in talks with gas-producing Gulf states to increase supplies in the event of Russian invasion—however viable that may be or otherwise—can the noble Baroness confirm whether Ministers are currently engaging with European allies which are particularly reliant on Russian gas? While the impact on our supply may be less, it could well put further upward pressure on prices.
I want to turn to the issue of finance. I think we also have to address the long-term failure of the Government to rid our economic and political systems of the ill-gotten gains used to support the Putin regime. If we take our obligations to global security seriously, we cannot go on allowing ourselves to be the world’s Laundromat for illicit finance. It is astonishing that, more than 18 months after the Russia report was published,   none of its recommendations has been fully implemented. We have put forward four proposals, and I hope the noble Baroness can respond on this.
First, we need to reform Companies House, because we need to crack down on shell companies. As a matter of urgency, we should be introducing a register of overseas entities. In your Lordships’ House, we have had debates—I can see the noble Lord, Lord Alton, nodding, as he has raised this issue on a number of occasions—about the origin and extent of Russian money buying up property and assets in the UK. Despite the Government’s Elections Bill that would make foreign donations to political parties easier, we need tougher regulations on overseas political donations. The Russia report was cross-party and at its core was our national security. It has to be implemented in full.
While we hope that all diplomatic efforts and threats of sanctions will lead to Russia changing course, the reality is that, whatever the outcome, we should have long ago addressed these issues. To be clear, we cannot stand up to Russian aggression abroad while facilitating Russian corruption at home. The Government need to get a grip and implement these measures. It would be helpful tonight if the noble Baroness could confirm that the Government will do that or explain why not.
As I said at the very beginning, at the heart of this are real people trying to live their lives, to go to work and to raise their families. They are having to stockpile food. They do not know what tomorrow brings. Ukraine should be free to determine its own future without fear or interference from Russia. It is up to the UK and our democratic allies to support that. However, we cannot escape the fact that, in recent years, Russia has produced a clear pattern of aggression which should have meant that we were better prepared for this moment and our ability to respond. As much as our immediate focus should be on deterring Russia’s invasion of Ukraine and acting accordingly if it does so, the recent actions of the Putin regime must represent a wake-up call for the UK, Europe and NATO.

Lord Newby: My Lords, as the Statement makes clear, the situation in Ukraine is now extremely perilous. The precise intentions of Russia are unclear, but if it were to launch a major invasion, as the Statement makes clear, the consequences would be horrendous. The Prime Minister set out the three strands of action which any attack would provoke from the UK and our allies: first, tougher sanctions on Russia; secondly, further steps to help Ukraine defend itself; and, thirdly, an increased NATO presence to protect our allies on the eastern front. These are all sensible and necessary, but I would like to concentrate on the issue of sanctions.
The Statement talks about imposing co-ordinated and severe sanctions against Russia should an attack take place. Clearly, economic sanctions are one area where we can really impact on the ability of the Russian regime to continue business as usual. It is, of course, unfortunate that sanctions are being discussed by the EU and the US with the UK often not being in the room. This means in reality that we will have no option but simply to follow what they decide. In practice, this may be of relatively little consequence, but it demonstrates how being outside the EU reduces Britain’s influence. More generally, it has been notable how small a diplomatic  role the UK has played compared to France, Germany and the US. Having a Prime Minister who is spending several hours a day attempting to persuade his own Back-Benchers not to end his own political career does not help, nor does the Foreign Secretary’s peculiar sense of priorities, which puts a visit to Australia ahead of being involved in European and broader international discussions on Ukraine.
Whatever common sanctions are adopted, the UK has an ability to take unilateral action that can have a major impact on the kleptocratic Russian regime. This is by moving against Russians and their money in the UK, particularly in London. A number of measures need to be taken, but three could be instituted immediately. First, the Conservative Party is a major beneficiary of Russian money. This includes 14 members of the current Government, of whom six are in the Cabinet, including the Chancellor. The Conservative Party could decide today to stop taking donations from wealthy Russians, many of whom have links to the Putin regime. Will it do so? Secondly, one of the reasons so much Russian money is laundered in London is that it can done secretly. The noble Baroness, Lady Smith, has already alluded to this. For six years, the Government have promised to introduce a register of beneficial interests in overseas companies. Indeed, yesterday the Prime Minister stated—incorrectly, incidentally—that the Government were already doing so, but they are not. My colleague Layla Moran MP has just introduced a Bill to this effect in another place. Will the Government now fast-track this Bill, given that it enacts government policy, so that it can be in place before the end of the Session? Thirdly, Russian oligarchs benefit from “golden” visas which enable them to buy the right to live in the UK. Will the Government now stop this practice?
The Government are going to be faced with some extremely difficult judgment calls in the weeks ahead, as events on the Ukrainian border unfold. The measures I have just proposed are simple, easy to effect and would hit the Russian elite where it hurts most—in their pockets. The measures are all long overdue in any event, but the current emergency makes them even more necessary.
President Putin’s understandable desire to keep any vestige of democracy at bay in Russia means that he is willing to threaten, bully and, if he thinks he can get away with it, act illegally to preserve the regime. However, he acts only having weighed the costs. By the range of actions which we now take, or signal that we will take, if he crosses the Ukrainian border, I hope we can persuade him that the game is not worth the candle. Sanctions form a key part of those costs, and the Government should start acting on them without delay.

Baroness Evans of Bowes Park: I thank the noble Lord and the noble Baroness for their comments. They are both absolutely right that Russia’s pattern of military build-ups on the border of Ukraine and in illegally annexed Crimea are unacceptable and an attempt to destabilise Russia’s democratic neighbours and exert control over them.
Russia’s deployment is not routine. It is equipped with tanks, armoured fighting vehicles, rocket artillery and short-range ballistic missiles. As we have made very clear—I am very grateful to the noble Lord and the noble Baroness for their support on this—a Russian incursion would be a terrible strategic mistake and subject to severe consequences, including, as both the noble Lord and the noble Baroness mentioned, co-ordinated sanctions to impose a severe cost on Russians’ interests and the Russian economy.
I can reassure the noble Lord and the noble Baroness that earlier this week, the Prime Minister agreed with the leaders of the US, Italy, Poland, France, Germany, the European Council, the European Commission and NATO that allies would enact a swift retributive response should a further Russian incursion into Ukraine happen, including an unprecedented package of sanctions.
I am afraid I do not recognise the noble Lord’s assertion that we are not central to these discussions; we are. My right honourable friend the Defence Secretary was at NATO today talking to the Secretary-General and, as noble Lords will know, the Prime Minister has been in regular contact with colleagues across Europe and the United States on this. We are working together and we are unified, and we continue to have these ongoing discussions. The Secretary of State for Defence also has an agreement with his Russian counterpart to meet. Details of those conversations and their timing are being discussed; obviously, we will make noble Lords aware once that has been confirmed.
We are looking at a package of broad and high-impact sanctions to raise the cost of further aggressive actions. We are working very closely with our allies, and sanctions have been central to our deterrence posture. The preparation of the package of sanctions, which is going on, by the UK and our allies is a clear signal to Russia of the significant economic cost it could and would bear if it invaded Ukraine.
Just to broaden on sanctions for a second, the noble Lord rightly said that we can take action ourselves, and we have done so. As he will be aware, last April we launched the new global anti-corruption sanctions regime, which enables us to impose asset freezes and travel bans on those involved in serious corruption around the world. We made immediate use of these powers and announced sanctions on 22 individuals who have been involved in serious corruption from six countries, including 14 individuals from Russia, and we have imposed sanctions under our autonomous global human rights sanctions regime on 25 Russian nationals who are responsible for appalling human rights violations in the case of Sergei Magnitsky. Therefore, across the board we have taken action and we will continue to do so.
The noble Baroness asked about energy. As she knows and said, we are not dependent on Russian gas supply; in fact, less than 3% of our gas was sourced from Russia in 2020. We meet around half of our supply from within British territorial waters and the vast majority of imports comes from reliable suppliers such as Norway. She is absolutely right: in our view, Nord Stream 2 is not compatible with Russia’s aggressive actions and we remain opposed to it. We regularly raise our concerns about Nord Stream 2 with our European colleagues and will continue to do so.
The noble Lord and the noble Baroness both mentioned the ISC Russia report. As they will be aware, we published our response immediately on publication of the report. Many of the recommendations are already in train and we are continuing work on further implementation. For instance, we have already implemented the NSC-endorsed Russia strategy and established a cross-government Russia unit. We have repeatedly exposed the reckless and dangerous activity of the Russian intelligence services, called out Russian malicious cyberactivity, and introduced a new power to stop individuals at the UK border to determine whether they are or have been involved in hostile state activity.
We have set out our plans to establish a register of beneficial owners for overseas entities that own UK property to combat money laundering and achieve greater transparency in the property market, and we have been clear about our intentions to significantly reform Companies House to strengthen our ability to combat economic crime.
The noble Lord asked about visas. The NCA has increased investigations into corrupt elites and we are currently reviewing all tier 1 investor visas granted before 5 April 2015, so action is going on there.
The noble Baroness asked about the registration of overseas entities. We are planning a Bill that will ensure transparency for foreign-owned land in the UK; currently it is easily disguised through offshore companies.
We are taking action on multiple fronts to crack down on economic crime. In recent years we have established a new National Economic Crime Centre to co-ordinate the law enforcement response, we have introduced new powers, including unexplained wealth orders and account freezing orders, and we have published a fraud strategy. I accept that there is more to do, but we have certainly been taking action in this area and will continue to do so.
More importantly, however, on the broader issue we are working closely with our allies and partners to make sure that we support Ukraine at this incredibly difficult time.

Lord Cromwell: My Lords, does the noble Baroness the Leader of the House share my concern that some western negotiators may view eastern parts of Ukraine as bargaining chips that could be included in a negotiation? Does she share my feeling that that would be a terrible precedent to set and that the Government of Ukraine would certainly view it as a betrayal?

Baroness Evans of Bowes Park: I agree with the noble Lord. Certainly, we are absolutely committed to Ukraine’s sovereignty and territorial integrity and to providing it with a full range of support.

Lord Campbell-Savours: My Lords, instead of dwelling on Russian aggression, why do Ministers not read the recently released declassified material in the National Security Archive at George Washington University? It reveals the security assurances given to the Soviets against NATO expansion in the names  of Baker, Bush, Genscher, Kohl, Gates, Mitterand, Thatcher, Hurd, Major and Wörner. The Russians, ever conscious of the 20 million lost in the last war, and with external threat in mind, nevertheless believed the undertakings and compromised. Talk now of the abrogation is causing today’s crisis. Before issuing irresponsible threats, should everyone not read the archive material, which is available in our Library?

Baroness Evans of Bowes Park: I am afraid I do not agree with the noble Lord. NATO does not pose an aggressive threat to Russia.

Lord Cormack: My Lords, the Prime Minister’s Statement ends with some important words:
“I believe that all Russia’s fears could yet be allayed and we could find a path to mutual security through patient and principled diplomacy.”
That is the way. I do not associate myself with all the remarks of the noble Lord, Lord Campbell-Savours, but one has to remember that 26 million Russians were killed in the last war. One has to remember that many Russians have folk memories and folk fears, and it is therefore very important that patient diplomacy, showing, as the Prime Minister says, that we understand those fears, provides the only real, sensible way forward.

Baroness Evans of Bowes Park: Certainly, I agree. In fact, NATO stands absolutely ready to engage in constructive dialogue with Russia to discuss mutual security concerns and has invited Russia to further sessions of the NATO-Russia council—it had its first meeting in two years recently—to discuss arms control, risk reduction and transparency measures.

Lord Alton of Liverpool: My Lords, does the noble Baroness agree that the issue of NATO is, as the Secretary of State for Defence, Ben Wallace, recently said, a straw man and that the invasions of Crimea and eastern Ukraine had nothing whatever to do with membership of NATO? Given the number of Statements and Questions—I am grateful to the noble Baroness for her remarks this evening, not least for what she said about economic crime—is there not a case for a full-scale parliamentary debate in your Lordships’ House? There was general indignation on Monday that it had taken a year for a report on Afghanistan finally to be debated when many of its prescient recommendations and points might have averted some of the catastrophe that occurred in August, which has so emboldened so many aggressors around the world.
In endorsing what the noble Baroness, Lady Smith, and the noble Lord, Lord Newby, said about sanctions, I refer the noble Baroness to the remarks of President Biden overnight. He said that this
“would be the largest invasion since World War II”
and would carry “enormous consequences”, including sanctioning personally Mr Putin. Is that also the position of Her Majesty’s Government?

Baroness Evans of Bowes Park: I have said that we are working closely with our allies to co-ordinate sanctions to maximise their deterrent impact and to limit as far as possible any negative impact on the UK or our partners. I am grateful that the noble Lord  recognises the number of opportunities that the House has had to discuss these important matters over the past few weeks—there was a Question earlier today in which noble Lords had an opportunity to be involved—and there are opportunities for Back-Benchers to raise and debate issues.

Archbishop of Canterbury: My Lords—

Lord West of Spithead: My Lords—the most reverend Primate beats me; he is senior to me.

Archbishop of Canterbury: Scarcely. I have never commanded a ship.
First, I associate myself with, particularly, the wise comments of the noble Lord, Lord Cormack. Having listened to the questions, does the noble Baroness the Leader agree that mediation and diplomacy should be pursued until the last moment, seeking to find ways to give both sides the opportunity to withdraw—particularly the Russians from their completely unjustified threats? The one thing we can be sure of is that, once war starts, all control of the situation will be completely lost, possibly for years, and the casualties will be terrible. Secondly, what provision are the Government making, should the worst come to the worst, to support the very large number of refugees and the huge needs for humanitarian support that will inevitably be part of fighting in the late winter in eastern Europe?

Baroness Evans of Bowes Park: I thank the most reverend Primate. He is absolutely right: diplomacy is the only way out of the current situation, but Russia must uphold the international commitments it has freely entered into and respect the sovereignty of Ukraine. I reassure noble Lords that we remain open to efforts by Russia to reduce tensions and encourage her to engage with transparency and de-escalation mechanisms, such as the OSCE and the NATO-Russia Council, as I mentioned. Further such council meetings have been offered to discuss a whole range of issues, and that is the way forward: to de-escalate and engage in meaningful discussions. The US Administration has also confirmed President Biden’s willingness to have another meeting with President Putin, continuing the bilateral dialogue they began last week, so a lot of effort is ongoing on that side of things as well. We are providing £40 million in official development assistance and other funding to Ukraine in the coming year.

Lord West of Spithead: My Lords, I do not need to rehearse the unacceptable things Putin has done, but we need to be very careful that we are not making empty threats but that they are co-ordinated, because, if something goes wrong, you have to show that you have made threats that you can fulfil, otherwise these things grow and grow and get worse and worse. I must say, as an aside, that sabre-rattling is not very good when the number of sabres you have seems to be getting fewer and fewer all the time.
I believe that Putin has been boxed into a corner now. He understands the problems, and does not want to get into a quagmire in Ukraine. It is incumbent on us to try to ease his escape from the corner he is in by negotiating or renegotiating an agreement. That will,  I fear, mean there must be concessions on both sides; that is the whole point of an agreement. Difficult as it is, that is what one must do, but we must not concede any fundamental principle. Who from the UK, if anyone, is helping to redraft the proposed security guarantee agreement that Russia put to NATO—it put another one to the US? Who from our side is helping to redraft that, so that we can submit a new agreement proposal to Russia?

Baroness Evans of Bowes Park: My understanding is that there is a press conference this evening, possibly now, from NATO setting out NATO’s position. Antony Blinken did a press conference earlier, just before this Statement, on the US’s position. There is action on both those fronts that may well be public by the time we have finished this discussion.

Lord Campbell of Pittenweem: My Lords, in a previous answer, the Leader referred to the sovereignty of Ukraine, and a passage in the Statement reads:
“nor can we accept the doctrine implicit in Russian proposals that all states are sovereign but some are more sovereign than others.”—[Official Report, Commons, 25/1/21; col. 863.]
In the course of our discussion in this Chamber, reference has been made to the Minsk II protocol and the suggestion that it could be used as the basis for negotiation. I urge the Government, through the Leader of House, to consider the fact that there is a school of thought that the Minsk II protocol contains two irreconcilable interpretations of Ukraine’s sovereignty and that, were it to be implemented, it would destroy Ukraine as a sovereign country. If that is a serious opinion, I hope that the Government will take it into account.

Baroness Evans of Bowes Park: I thank the noble Lord for his contribution, and recognise his great expertise in this area. I will most certainly take it back to make sure that people are aware of it.

Lord Balfe: My Lords, to follow up on the question from the noble Lord, Lord Campbell-Savours, two months after Stalin’s death, Churchill said in another place:
“I do not believe that the immense problem of reconciling the security of Russia with the freedom and safety of Western Europe is insoluble.”—[Official Report, Commons, 11/5/1953; col. 896.]
The fact is that Ukraine was a creation, as much as anything else, of Winston Churchill and Joseph Stalin, and it is a very odd country indeed. We started many of the problems that we now have when we chased Yanukovych out of office. In the Prime Minister’s Statement, he says we should
“address any legitimate Russian concerns through honest diplomacy.”—[Official Report, Commons, 25/1/21; col. 861.]
The problem is that what we regard as legitimate, they do not, so I should like to rephrase that and ask Her Majesty’s Government whether they will seek to get together a conference, with everything on the table, to try to get some sort of agreement.

Baroness Evans of Bowes Park: As I said, the UK is committed to Ukraine’s sovereignty and territorial integrity, and we are providing a full range of support. There is no justification for Russia’s aggressive and destabilising activity towards Ukraine.

Baroness Bennett of Manor Castle: My Lords, in responding to the Front-Benchers, the noble Baroness the Leader of the House said, regarding dirty money, “I accept there is more to do”. She may be aware of the report yesterday from the Center for American Progress, a think tank known for being close to the Biden Administration, suggesting what to do if Russia invades. In its recommendations, it mentions, at paragraph 1.2, the formation of a
“U.S.-U.K. counter-kleptocracy working group.”
It explains this by saying that the US should propose the working group
“in part to prod stronger action from the U.K. government.”
Will the UK Government be waiting for that prod, or will they take stronger action immediately, not in the long-term future?

Baroness Evans of Bowes Park: In answer to questions at the beginning, I set out a whole range of things that we have done, and are doing, to tackle money-laundering and economic crime. We will continue with that work.

Baroness Neville-Rolfe: My Lords, I declare an interest as chair of Crown Agents, which supplies Covid vaccine to Ukraine. I think a further debate on Ukraine would be useful, as the noble Lord, Lord Alton, suggested. I am interested in the position of Germany and France, which were, of course, involved in the Minsk protocol, signed after the 2014 Ukraine crisis. How far are they aligned with UK thinking at present—especially Germany, given its particular trading interests across eastern Europe?

Baroness Evans of Bowes Park: We are working very closely with our allies. I am sure my noble friend will be aware that, today, there is a political advisers meeting taking place in Paris of the Normandy Format—France, Germany, Ukraine and Russia. Although we were not part of that process because we are not within that group, we actively support France and Germany’s efforts, and are working very closely with them.

Viscount Waverley: My Lords, President Putin might be shooting himself in his foot, because it is conceivable that any external troops might remain in the event of any cross-border activity. That is something that he particularly does not wish to have happen. That said, what are President Putin’s stated suggestions to defuse the situation, and what is his reaction to Ukraine and its allies’ responses to those suggestions? Finally, what note has been taken of the hardliners around President Putin, who are very much in play in what Russia does?

Baroness Evans of Bowes Park: As I have said in answer to a number of questions, we stand ready to engage in constructive dialogue with Russia to discuss mutual security concerns. Last week, for the first time in two years, there was a meeting of the NATO-Russia Council, and there has been an offer of further sessions to discuss arms control, risk reduction and transparency measures. There are, therefore, mechanisms by which issues can be discussed by all parties to try to defuse and de-escalate the situation.

Lord Sterling of Plaistow: My Lords, my noble friend mentioned the number of Russians who died in the war, but one must not forget the number of Poles killed and murdered when, together with Germany, the Soviet Union attacked Poland. To what extent do the Government really feel that, in the end, the only thing that is really important to Putin is the pipeline, and whether Germany, in due course, will give way to allowing it, because it needs that gas?

Baroness Evans of Bowes Park: As I said in response to the noble Baroness’s question about Nord Stream 2, we do not believe that it is compatible with Russia’s aggressive actions. We remain opposed to it and we continue to raise our concerns with our allies and partners to highlight the strategic risks of this project.

Viscount Stansgate: My Lords, this might not be a popular question to ask, but it is a very dangerous situation. The House knows that one of the options is war if President Putin makes the fatal mistake of invading Ukraine, but just before entering the Chamber, I listened to Secretary of State Blinken make his statement that the United States has put questions to and answered questions from Russia. He made a point of saying that he will not reveal what the United States has said. The reason for that, as I understand it, is that if you are to have diplomacy and give it a chance, as the noble Lord, Lord Cormack, said, it is very difficult, and patient diplomacy takes a great deal of doing. Perhaps it is better that an element of space is given to enabling the negotiations to take place.
I remember the Cuban missile crisis from when I was a young person, and that was a terribly dangerous time but, as those who have read a little about it will remember, it was giving the other side the opportunity to withdraw and save face that stopped, in that case, a nuclear exchange. In this case, I hope it would stop a very unnecessary and deeply damaging war.

Baroness Evans of Bowes Park: The noble Lord is right, which is why, as I said, diplomacy is the only way out of the current situation. There are a number of forums through which diplomatic channels are open, and we want to use them; we are urging Russia to use them, as are our allies. We will try to make sure that we can de-escalate the situation because, as the noble Lord says, the quagmire of a long-running conflict would be catastrophic for all sides.

Health and Care Bill
 - Committee (6th Day) (Continued)

Amendments 174B to 176A not moved.
Clause 39 agreed.

  
Clause 40: Reconfiguration of services: intervention powers
  

Debate on whether Clause 40 should stand part of the Bill.

Baroness Thornton: My Lords, I would much prefer that the noble Baroness, Lady Cumberlege, should open on this group. I will speak to the question of whether Clause 40 should stand part when that has happened.

Baroness Cumberlege: My Lords, I will speak to Amendment 179 and the other amendments in my name. I thank the noble Lords who put their names to these amendments: the noble Lords, Lord Shipley, Lord Hunt of Kings Heath and Lord Patel. We are told that the driving force of the Bill is to ensure that health and care services are delivered at place; and to empower local leaders—leaders who know what their local communities’ needs are and who will make decisions about how care is delivered. I am sure that is music to the ears of my noble friend Lord Mawson.
We are told that the integrated care systems—the ICSs—will be given the flexibility to plan, to commission and to provide services according to the specific needs of their population. This principle is undermined by the unchecked power that the Bill gives the Secretary of State over local configuration of services. I am pleased to tell your Lordships—particularly my noble friend Lord Howe, who is on the Front Bench for this item—that Amendments 179 to 183 have the support of a number of influential voices. These are voices from the health and local government sectors, the NHS Confederation, the King’s Fund, NHS Providers, the LGA, the BMA, National Voices and the Centre for Governance and Scrutiny. These organisations cover NHS leaders, local authorities, clinicians and patients. It is significant that they are united in their deep concern about the powers that the Secretary of State would have over local reconfigurations as the Bill currently stands.
Of course, there is an existing system for local reconfiguration and it works very well. It is overseen by the Independent—that word is very important—Reconfiguration Panel, the IRP. This has helped take politics out of the difficult decisions surrounding services. Crucially, the current process for service reconfiguration starts with local consultation and consideration of clinical advice. These elements are fundamental, and they must be maintained in a future process. In short, the Secretary of State should be able to intervene in a decision about local services only once local people have had their say on the proposed changes, and once clinical advice has been considered. It will be to the detriment of patient safety if it has not. Under the existing arrangements, when the process takes too long, it has often not been about the IRP but about the Secretary of State’s failure to reach a decision, yet the Government state that the new powers are needed to speed up the process.
Just before Christmas, for instance, the Secretary of State finally made a decision on the reconfiguration of local stroke services in Kent and Medway—a decision that had been on his desk for two years. That was not because the Secretary of State disagreed with the panel’s findings; on the contrary, he accepted the recommendations in full and has always done so.
I know that we need to speak at speed and get through our business so I will resist telling the Committee of the shattering case of Epsom and St Helier University Hospitals, where the politics got involved. A proper process was followed and took a year. Even today they are only starting to build what was decided 16 years ago. It has taken that long to get to this position. The detail is fascinating but I will not go into it because it is quite lengthy.
Amendment 179 addresses the scope of reconfiguration in the current form. Currently the Bill allows the Secretary of State to intervene in any number of local service reconfigurations. This would include decisions about an individual GP or dental surgery, for example—very local issues. We could well see a world in which the DHSC is snowed under with such decisions to intervene. These are local decisions but still are very real to local communities. In turn, this would increase the costs for the department and reduce the time that its civil servants had to spend on national policy matters. The amendment would mean that any intervention from the Secretary of State could be made only on complex and significant decisions.
Amendment 180 concerns transparency and clinical oversight. The noble Lord, Lord Hunt, talked about that earlier today. We agree that decisions on local service reconfigurations should be based on clinical advice. That is the way in which services should be delivered to ensure patient safety and quality of care. The amendment would require the Secretary of State to consult all relevant organisations delivering the NHS services under consideration, to obtain the clinical advice of the integrated care board, and to publish those submissions. This will ensure that changes to clinical services are based primarily on clinical, not political, pressures.
Of course we should put patient safety and health first but the amendment would also require the Secretary of State to consult the health and overview scrutiny committees. They scrutinise local service reconfigurations and ensure accountability to local communities where a service spans more than one local authority area. Again, I hope noble Lords will agree that patients and citizens have the right to scrutinise and to have a say in how the services that they pay for through their taxes are delivered.
Amendment 181 is important. It seeks to ensure that decisions on local reconfigurations are not delayed over months. For example, it could be politically expedient for a Secretary of State to delay a decision because of a pending election, either local or national. Limiting the period to three months would mean that the Secretary of State had to provide certainty to local service managers for planning purposes and reduce any delays to accessing care.
Amendment 182 would ensure that changes are in the public interest. At Second Reading, the Minister said that the new powers for the Secretary of State were about ensuring accountability. Surely it follows that he must set out why he is intervening in a configuration process and why it is the public interest for him to do so. The amendment would require him to publish a statement demonstrating that any decision he has made on a reconfiguration proposal is in the  public interest and that it has been taken with consideration of its positive impact on patient safety. Again, this will provide a safeguard against any decisions being made for politically expedient reasons.
Amendment 183 addresses the ability of the Secretary of State to act as a catalyst in reconfigurations. I hope noble Lords will agree that local service reconfigurations should be based on clinical considerations. In its current form, the Bill would allow the Secretary of State to be the instigator of local reconfigurations, even if there were no appetite locally. This is a significant overreach of powers. How can the Secretary of State know what is best for patient safety in any one of the 42 ICS areas? The amendment removes the Secretary of State’s power to act as the catalyst for reconfiguration.
In closing, I hope that the Minister, my noble friend Lord Howe, will view these amendments in the spirit in which they have been drafted. I have sought a compromise to ensure that clinical checks and balances on the new powers of the Secretary of State are reasonable and acceptable. After all, they are intended to protect the Secretary of State and his department as well as patients, clinicians and service managers. If I have been unconvincing, I hope that my noble friend will be persuaded by the succinct letter in today’s Times signed by Richard Murray, the chief executive of the King’s Fund, Chris Hopson, chief executive of NHS Providers, and Matthew Taylor, chief executive of the NHS Confederation—all of them and their organisations have been very helpful in advising me on this issue.
I hope also that Ministers will recognise the breadth and depth of support from the health and local government sectors for these amendments. They will know that bringing together so many organisations with varying roles and priorities is very difficult. The fact that so many are singing the same song is a triumph and I am sure that my noble friends on the Front Bench will consider these views and give pause for thought. I am sure that they will not be dismissive. That is not in either of their natures, as we have witnessed on other matters. However, I want some reassurance that these amendments are not totally negative and are not to be totally dismissed. I hope that my noble friends will seek to work towards some of these amendments because they are really important. Those of us who have been through the whole process of reconfigurations in a position of authority—not as a Minister, as the noble Lord, Lord Warner, was, but as junior Ministers—know how fraught reconfigurations are. I therefore hope that these amendments will find some favour with my noble friends on the Front Bench.

Baroness Pitkeathley: I call the noble Lord, Lord Howarth, who is participating remotely.

Lord Howarth of Newport: My Lords, your Lordships’ Select Committee on the Constitution, of which I have the honour to be a member, has advised the House, as has the Delegated Powers and Regulatory Reform Committee, that this Bill is a skeleton or framework Bill. It provides a multitude of vaguely delineated powers and duties. It is often impossible for noble Lords to scrutinise these meaningfully because their meaning is so unclear
The Bill is also an instance of a growing tendency in the Government’s legislative practice to create “soft law”—that is, guidance, rules and directions which are not susceptible to parliamentary scrutiny but are, in, effect binding. It also creates “hard law”, which is not susceptible to parliamentary scrutiny, as in the Henry VIII power in Clause 15, but is subject only to the negative resolution procedure.
This manner of legislating is part of a pattern documented in a long series of reports by the Constitution Committee, drawing the attention of the House to Henry VIII clauses which are convenient to the Executive but subversive for parliamentary democracy, and to the creation of delegated powers enabling Ministers to bring in significant policy change subject to little or no parliamentary scrutiny. The DPRRC has reported that the Bill contains no less than 155 delegated powers.
What is egregious, however, are the autocratic powers that the Bill accords to the Secretary of State. I had sought to indicate that I wished to speak on the previous group, but there was some confusion, and the Chair did not invite me to do so. I hope therefore that noble Lords will bear with me as I take us back for a moment.
As the noble Lord, Lord Hunt, and others, noted Clause 39, entitled
“General Power to Direct NHS England,”
states:
“The Secretary of State may give NHS England directions as to the exercise of any of its functions.”
It goes on to say:
“The directions that may be given include a direction as to … when or how a function is, or is not, to be exercised”
and
“matters to be taken into account in exercising a function.”
The autocratic power provided by Clause 39 is exacerbated by Clause 64, which repeals the duties previously placed on the Secretary of State to respect autonomy within the NHS.
The mischief, which the noble Baroness’s amendments in this group seek to mitigate, is further compounded by Clause 40 and Schedule 6, which confer comprehensive powers on the Secretary of State in regard to reconfiguration of NHS services. Effectively these three clauses together confer upon the Secretary of State, with only the exception stated at proposed new Section 13ZD in Clause 39, mainly in relation to clinical discretion, absolute power over the NHS.
We are told that the Secretary of State has no intention of bossing NHS England around and that he needs powers to sort out failures within the NHS system. In our earlier debate today on continuing care, and in his response to the last debate, the Minister said it is not the Government’s intention to interfere unduly in the affairs of ICBs. However, in a letter to the Times today, referred to by the noble Baroness, the chief executive officers of the King’s Fund, NHS Providers and the NHS Confederation warn of the danger that the Bill may lead to politicisation of decision-making in the NHS, of the kind which the noble Lord, Lord Warner, described in the last debate and which the noble Baroness, Lady Cumberlege, has just explained. The fact remains that Clauses 39, 40 and 64 make the Secretary of State untrammelled master of the NHS.
With such power comes temptation, not least for Department of Health officials. What might “unduly” mean in practice? The Secretary of State may often refrain from interfering, but too often he, or officials acting in his name, may not. In any case, to accord the Secretary of State such excessive power is wrong in principle. The legislation should strike an acceptable balance between the autonomy which NHS leaders and managers need if they are to do their jobs well, responding as they judge appropriate to local needs, and a due accountability of the NHS to the Secretary of State and, through him, to Parliament. Here, however, we have neither. The Bill concentrates power over the NHS in the hands of a Minister who is poorly accountable to Parliament in the exercise of much of his power.
It is commonly observed that government in England is excessively centralised. The Minister told us in the debate on ICPs earlier today that the Bill is based on the principle of subsidiarity. However, what purports in the Bill to be an exercise in decentralisation, through the creation of ICBs and the prospect of ICPs, when examined is in fact a hierarchical measure through which power is concentrated in the Secretary of State at the top and is tightly circumscribed below by his powers of patronage and direction.
The constitutional character of this legislation is part of a larger story of Executive aggrandisement by a Government who, armed with a large majority in the elected Chamber, have scant respect for other sources of authority or for the conventions of parliamentary government. That the Government’s majority in the House of Commons is decreasingly biddable does not make its Executive arrogance any less objectionable. Clause 40, like Clauses 39 and 64, should not stand part of the Bill.

Lord Stevens of Birmingham: My Lords, it is a privilege to speak to this group of amendments. I recognise that a public service as important as the National Health Service has to be democratically accountable to the Secretary of State and Parliament. I also recognise that the broad provisions of the Bill have wide support outside this House from organisations ranging from the Academy of Medical Royal Colleges to the representative organisations spoken of today, the Patients Association, and many others which, at the inception of these proposals, came forward to advocate for them.
However, unfortunately, when we turn our attention to Clause 40 and Schedule 6 there is no such support for the measures therein. These provisions manage, perhaps uniquely, to combine being unnecessary, undesirable and unworkable—a legislative trifecta that has little to commend it.
The measures are unnecessary for the reasons set out by the noble Baroness, Lady Cumberlege. There is already a well-established mechanism for local consultation, under which democratic local authorities can, if concern arises, bat a proposal up to the Secretary of State for a national decision with the advice of an independent expert panel. There is also established public law in  this area, which can be tested through judicial review. Just about nobody, nationally, or locally, thinks that the proposals in this part of the Bill are needed. They are, in effect, a solution in search of a problem.
As well as unnecessary, these proposals are undesirable. They would confuse and obscure accountability for the quality and safety of patient care. The Court of Appeal held in Nettleship v South Tyneside and Sunderland CCGs in 2020 that there is no duty to include in a public consultation options which local commissioners deem to be unviable, unrealistic or unsustainable. Yet Schedule 6 would allow the Secretary of State to impose service changes that local clinicians, local patient groups and, indeed, local authorities deem unsafe or unviable. This clearly cuts across the statutory responsibilities of local boards for the safety and quality of care.
Where the Secretary of State has imposed such a service change on the local NHS, is it the Secretary of State who will then be in receipt of Care Quality Commission findings and scrutiny? Is it the Secretary of the State who will be on the receiving end of medical negligence claims, or potentially criminal proceedings? This set of measures completely obscures the well-established accountability for the quality and safety of local care.
I believe that these measures are unnecessary and undesirable, but they are also unworkable. As worded, the definition of a reconfiguration is vague and overly broad. It could capture just about any change in service provision. On page 197, the Bill refers to changes that have
“an impact on … the manner in which a service is delivered to individuals.”
That could cover just about anything, and if hospitals are proposing such a change, they have a duty to notify the Secretary of State.
By contrast, the long-standing Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013, with which your Lordships will be intimately familiar, set a higher hurdle, which is that the consultation requirement applies to
“a substantial development or variation”
in services. In its place, we would instead have, through the Bill, a set of processes that would lead to second-guessing, centralising and politicising, a furring-up of the NHS’s decision-making arteries, which, had these measures been in place during the pandemic, would have handicapped the response, at precisely the time when the NHS needs to be agile and adaptable, and will do nothing to advance the changes needed across front-line care delivery.
For all these reasons, I believe that if the Bill is passed in its current form, Clause 40 and Schedule 6 will become a running sore, not only for patients and local service but for Ministers. There are two possible ways forward. There is the proposal that Clause 40 do not stand part of the Bill, as suggested by the noble Lord, Lord Lansley, which would surgically excise the problem, or there is the group of amendments tabled by the noble Baroness, Lady Cumberlege, which would apply sutures, analgesics and disinfectant. Either approach could work, but one or the other is needed.

Lord Shipley: My Lords, I am very glad I delayed my speech so that I could hear the noble Lord, Lord Stevens of Birmingham, because I agree with everything he said.
My name is on Amendments 179 to 183 in this group. I shall try not to repeat the comprehensive explanation by the noble Baroness, Lady Cumberlege, of the problems these amendments would address, which are similar to those that we debated in the previous group. I hope that the Minister will accept that the proposals in the Bill as they stand are overcentralising, and that this issue will have to be addressed by the Government on Report.
I agree very strongly with the noble Lords, Lord Howarth of Newport and Lord Stevens of Birmingham, who made unanswerable contributions. In the words of the noble Lord, Lord Stevens, these provisions are unnecessary, undesirable and unworkable, and they confuse and obscure accountability. I hope the Minister will take very seriously what is being said because the Bill’s ambition is to increase transparency and accountability. That is right, but it surely should be prioritised at a local level since that is where services are delivered. The Bill undermines that principle. It thinks accountability should lie in Whitehall, yet there has been no strong call to enable the Secretary of State to intervene earlier in the reconfiguration process and, anyway, there is already an established role for the Secretary of State in cases that are referred. Those processes should not be undermined.
Amendment 179 would change the definition of a reconfiguration of NHS services to ensure that only complex and significant changes to NHS services should be considered. Surely that is right. Amendment 180 would require the Secretary of State to consult all relevant health overview and scrutiny committees plus those organisations delivering relevant services locally along with the integrated care board. That must be right. Amendment 181 would require speedy decisions, and that must be right. Amendment 182 would require the Secretary of State to publish a statement demonstrating that any decision made by the Secretary of State on a reconfiguration proposal is in the public interest and has been taken with patient safety as a priority. That must be right. Crucially, Amendment 183 would prevent Secretary of State acting as the catalyst for a reconfiguration. That, too, must be right.
I hope the Minister will understand that there is much concern about the proposed new powers for a Secretary of State to intervene at any stage in a local service reconfiguration without any need to demonstrate the basis of the information on which their decisions might be reached. There is already a clear process for reviewing proposals for NHS reconfigurations, which are health overview and scrutiny processes charged with establishing whether proposals are in the best interests of their local communities.
What the Government are proposing is not in the spirit of the Bill, and I hope they will take note of the concerns expressed by the NHS Confederation and many others and bring back further amendments on Report to address them.

Lord Patel: My Lords, I support all the amendments in the name of the noble Baroness, Lady Cumberlege. She introduced them very comprehensively and I agree with what she said. My noble friend Lord Stevens of Birmingham added to it, so much has already been said and I need to be extremely brief.
I concur with my noble friend Lord Stevens of Birmingham that outside bodies, including professional organisations in medicine, oppose these powers and that they will lead to more chaos rather than solving problems. As a clinician, I find the unchecked powers for Secretaries of State over local service reconfigurations that the Bill proposes astounding. Local service reconfigurations should be driven by clinical advice and expert assessment of what services are needed to meet the health needs of a local community with patient safety at the heart, as well as considerations about what resources are available in terms of workforce, infrastructure and the proximity of alternative services.
The powers in the Bill would allow the Secretary of State to initiate service changes without any consultation. How can any Secretary of State feel sufficiently qualified to be making unilateral judgments about what constitutes “safe”? The existing, largely successful, processes, which have already been mentioned, take account of clinical advice and the views of local communities in the final decision have been effective. The noble Baroness gave the example of Kent and Medway stroke services, which were held up by the Secretary of State, not by the consultation. I strongly support these amendments and I hope that the Minister will think about removing the provisions from the Bill.

Lord Lansley: My Lords, I shall be brief. I put my name to Clause 40 stand part, and I think that is the best way to go. I shall add one or two things. First, as Secretary of State, I asked the now noble Lord, Lord Ribeiro, to lead the independent reconfiguration panel, and I never had cause to regret doing so. Secondly, I can say something which other noble Lords cannot, because I am on this side, and I am hoping that we continue to have Conservative Secretaries of State for many years hence. They will be much better off if they do not do this. If the Government take Clause 40 out, they will equally not regret doing so.

Lord Hunt of Kings Heath: My Lords, I described at Second Reading, or at some point in a meeting with the Minister, an attempt to save Ministers from themselves. I do not understand why on earth the Government want to put this burden on them. The Government have set out an ambitious programme for reform of the NHS. Why put in a clause that guarantees that that reform will be stalled? We know that reconfigurations—most of us have experienced the issue locally, if not nationally—are very difficult. There is always local opposition, often from some leading consultants, and to get it through you have to be very determined. The noble Lord, Lord Warner is right; once Ministers can intervene at any point—for example, if an MP’s local services are threatened with an unpopular change—even in the Lords, the pressure on them to intervene can be huge.
When I was a Minister, we were always mindful of the experience of my good friend David Lock, the MP for Kidderminster, who lost his seat in 2001 because as a government Minister—and a good egg—he loyally defended the decision to reduce the status of Kidderminster General Hospital and merge with Worcester. That was written on the heart of every MP, so when a proposal threatened them and their constituency, and frankly their seat, the first port of call was the Minister. We now have a system which has offshored this to a large extent, and I agree with the noble Lord, Lord Lansley, that it has been pretty successful.
When the Bill receives Royal Assent and becomes an Act, it will be open season on the Minister and his colleagues. On any reconfiguration where the local MP is troubled, inevitably Ministers intervene, or they use the review device. Consider the issue of children’s heart transplants and the attempt over 20 years to rationalise it, and the utter failure of that approach; that is but one example of the kind of energy that you can get the moment Ministers have powers of intervention.

Lord Lansley: If anyone cares to look at it, it was also a very good illustration of the benefits of the Independent Reconfiguration Panel. Not only did it do something that Ministers could not do; it also did something that NHS management did not do. It is not that we are giving it back to the NHS to do what it likes—it genuinely does something independent.

Lord Hunt of Kings Heath: Indeed, we have a rigorous process involving the overview and scrutiny committee, as has been said, plus an Independent Reconfiguration Panel. As the noble Lord, Lord Stevens, said, it is rather like the last debate: before us we have a set of amendments which seek to constrain the power of Ministers, and then an amendment which seeks to remove this power. I am clear that we should try to remove this power, and that this is the best course. It will be very interesting to hear from the Minister exactly why Ministers want to put this burden on them, and what benefit they can possibly see in it.

Lord Warner: My Lords, I want to briefly make clear my support for this group of amendments and try to be consistent with what I said on the previous group. The only amendment which causes me to have pause for thought is Amendment 183. The NHS, perfect in every form of course, has been known to have its arteries fur up occasionally. Sometimes there is a need for scale in some services. I want to mention three or four services where scale, after clinical consideration, is important. Pathology is a good example, where we need to have more scale than many of the local pathology departments. Another one, which the Royal College of Surgeons has advocated, is elective surgery hubs, which may mean taking stuff away from a particular local hospital. Another good example is the issue of stroke specialisation, which is beneficial for patients. I have given you three examples where we do not want to totally neutralise the Secretary of State. Sometimes Ministers have a use; it may be few and far between, but occasionally they have some use. We do  not want to say that you cannot ever be a catalyst for change. That seems a bit drastic in Amendment 183, and I ask the noble Baroness, Lady Cumberlege, to think about that, because sometimes scale is important, with clinical advice for the benefit of patients.

Baroness Walmsley: My Lords, I am in favour of surgical excision. I oppose the powers of the Secretary of State in Clause 40 and Schedule 6 to intervene in decisions on reconfiguration of health services. Far be it from me to want to protect Conservative Secretaries of State for Health from themselves, but I warn that if they use these powers they will eventually get the blame.
The noble Lord, Lord Stevens, gave a number of very good reasons why this clause should be deleted from the Bill. My reason is somewhat different. I think these powers are very dangerous. We have recently seen how the Government’s powers to provide or withdraw funding from a proposal, let us say, to build a new school or improve infrastructure in a particular constituency have got them into trouble. We have heard allegations made against Government Whips by Members of Parliament of actions which could be criminal offences of bribery. It is alleged that, in seeking to ensure support for their leader, they are threatening Members of Parliament that funding for their projects, which have already been declared to be in the public interest of their constituents, will be withdrawn unless they behave in a certain way, so political considerations would trump public interests.
Like the former Member of Parliament to whom the noble Lord, Lord Hunt, referred, all politicians know that the provision of a new hospital or clinic or, on the contrary, the closing of a healthcare setting are very sensitive considerations in elections. All parties ensure that the voters know their views on these matters at election time and in between elections. The Prime Minister knows this. Why else would he put such emphasis on his promise of 40 so-called new hospitals by 2030 if this were not the case? It makes a good headline, even if we know that some of them are not new and some of them are not hospitals.
The powers of reconfiguration sought by the Secretary of State in Clause 40 would give the Government the ability to change the decisions of those put in place locally and well qualified to make them in a non-partisan and needs-based way, thus allowing the Government to wield unwarranted political power. It is probable that this Government would not be able to resist doing so, for the wrong reasons, and it is incumbent on all parties to stop them by deleting Clause 40 from the Bill. Indeed, I do not think that I would be in favour of giving these powers to any Government of any political party; they are just too liable to be misused.

Baroness Thornton: I think the Minister is probably getting the message by now. I shall speak to my Clause 40 stand part debate and the amendment in the name of my noble friend Lady Merron. Somebody said earlier that we can be sure that the proposals to allow greater powers for the Secretary of State to intervene in reconfigurations is not something that the NHS asked for. That is almost certainly true.
I congratulate the noble Baroness, Lady Cumberlege, on her great coalition- building; she is very good at building coalitions in support of the things that she cares about, and she has definitely managed to do that with this group of amendments.
Noble Lords have pointed out that, at the moment, we have a system which works. It may be slow, and it is absolutely true that it has processes which take too long, but there are elements of public and patient involvement through consultations. The changes made in 2012 under the noble Lord, Lord Lansley, brought in four tests and some rigour of external independent evaluation. The core of that process still exists. As a non-executive member of the board of the Whittington, I can say that this is exactly the kind of thing that we have been involved in in our own hospital.
The consultations might be improved, but they will not be improved at all by this proposal. In fact, I think that this clause is very odd indeed. It is a bad idea, and it adds nothing to the core of this Bill and its central aim, which is to grow place-based independent and innovative healthcare, and it probably needs to go.

Lord Kamall: I thank all noble Lords and noble Baronesses for their contributions. I would be pretty blind or deaf not to understand the level of concern across the Committee. However, if noble Lords will bear with me, I shall try to set out some justifications. I preface my remarks once again by saying that I strongly hear the views of the Committee, and I welcome the fact that previous Ministers and Secretaries of State are warning us not to fall victim to this, as it were.
I start by explaining some of the justifications. It may be helpful to start with some of the observations. The public expect Ministers to be accountable for the health service, which includes service change. We see the new intervention powers enabling the Secretary of State to act as a scrutineer and decision-maker for reconfigurations, to intervene when, for example, they can see a critical benefit or cost to taking one or other course of action, or to take action where there is a significant cause for public concern. Having said that, we accept that public concern could well be a political one, so we understand the concerns expressed by noble Lords.
We expect this power to be used infrequently and, when it is used, it will be done proportionately and transparently. All decisions made using the new reconfiguration call-in power in the Bill must be published, which will ensure transparency and proper scrutiny. The new call-in power for reconfigurations will allow the Secretary of State better to support effective change and respond to stakeholder concerns, including from the public health oversight and scrutiny committees and parliamentarians in a more timely way.
I turn to Amendment 183. Given the role of the Secretary of State, it is proportionate to ask him or her to ask local commissioners to consider service change where there is concern. Once again, we do not expect this power to be used frequently, and all service changes, regardless of whether a Secretary of State has been a catalyst, will still be required to go through due process and where appropriate local consultation.  Before any proposal was agreed, the planning and assurance for a proposal would still have to include strong public and patient engagement, consistency with a current and prospective need for patient choice, a clear clinical evidence base and support from commissioners.
I turn to a couple of points from my noble friend Lady Cumberlege and the noble Lord, Lord Stevens, who said that the powers were unnecessary, undesirable and unworkable. To look at the necessity of the power, the current system can lead to referrals coming very late to the Secretary of State, and the power will allow the Secretary of State to intervene earlier to avoid that. For example, my noble friend Lady Cumberlege referred to the Kent and Medway stroke services reconfiguration proposal. One reason why it was lengthy was the need to review the right options for the system. We are hoping that it goes something like this—that you could either knock heads together or, as someone put it more starkly, have a sword of Damocles over them to come to a decision more quickly. But once again we understand the concerns.
I turn to Amendment 180. It is vital that all local views, including that of the health overview and scrutiny committees, are represented in the reconfiguration. The new power in the Bill will not replace the important local scrutiny and engagement that plays such an important role in service change decisions, and a duty for those locally responsible for service change proposals to consult local authorities will remain. It is right that for commissioners and providers who are responsible for planning, assuring and delivering reconfigurations the duty to consult HOSCs and other local stakeholders continues. We are also introducing a duty for NHS England, integrated care boards, NHS trusts and foundation trusts to provide information and other assistance required for the Secretary of State to carry out functions. That will allow the Secretary of State to take into account local views. We expect the Independent Reconfiguration Panel to consider the views and carry on the way it works.
On Amendment 181, we recognise the importance of timely decision-making—

Baroness Thornton: Is the Minister saying that the Government and his department do not trust NHS England to fulfil this function any longer?

Lord Kamall: No, we are saying that, where there is an issue and it is taking a long time, this measure allows the Secretary of State to come in in a more timely manner rather than waiting for a late referral.

Baroness Thornton: Does the Minister think that will save time?

Lord Kamall: Yes.

Baroness Cumberlege: My Lords, before the Minister goes on—just so I do not lose the thread here— could he tell us why the Independent Reconfiguration Panel has to go? What are the problems with it?  Why do we have to move it off in order to bring in a politicised system with the Secretary of State making the decisions?

Lord Kamall: I must clarify here. I have said that we expect the Independent Reconfiguration Panel to continue to consider views. We are not getting rid of it.

Baroness Cumberlege: So that presents a problem. What does the Secretary of State do, and what does the independent panel do? Is it a question of the scale of the change that is being proposed? Where are the boundaries?

Lord Kamall: The Secretary of State will be advised by the Independent Reconfiguration Panel, especially where there is a difficult decision that takes time, just as in the case of the Medway.
On Amendment 182, the Secretary of State’s decision-making process must already take into account the public law decision-making principles, all relevant information and his legal duties, including the public sector equality duty. The Secretary of State is also under several duties in the National Health Service Act 2006, including to promote a comprehensive health service and to support continuous improvement in services.

Lord Hunt of Kings Heath: There are a lot of marginal seats, and there is going to be a general election in two and a half years—maximum. A lot of the reconfiguration proposals usually relate to smaller places with smaller hospital or DGHs because their viability is often in doubt. So it is quite clear to me that any MP, particularly government MPs, will immediately take any threat of that sort to their local services to the Secretary of State. That will not speed up the process; it will guarantee the opposite. The signal that I would get from the health service as a result of this is: “Forget reconfiguration proposals until after the next election because you ain’t going to get any through.” That is why we think this is a disastrous move.
When the Minister says there will not be many interventions, that is just nonsense. The moment that MPs know the Secretary of State has the power to intervene at any stage, they will be knocking at the door of the Government, who will wilt under that pressure, because that is what happens. Then they will go back and say, “We need to have an independent review of that before you start the process.” There are so many dodges available to a Minister, if you want to dodge making a hard decision in this area, that it will completely paralyse the health service. That is why this debate is so important because it is related to the last one; the result of Ministers gaining direct control will be to delay and reverse, and I am afraid that the hopes that Ministers have for a dynamic, forward-looking health service will come to nothing.

Lord Warner: My Lords, following on from the noble Lord, Lord Hunt, I ask the Minister to consider the point that I was trying to make about Amendment 183. The Minister and the Government have got this the wrong way round: if he is actually  concerned about levels of efficiency, the supply of services and the issue of scale—and the issue of scale is a very real one—then he needs to be at the front of the process, not the end of it. It is a bit late in the day to be having these ideas about scale in a particular set of services when you have gone through the agony of the local consideration of reconfigurations. As a Minister, it would be better, if I may say so, to set out your views at the beginning with the clinical arguments for why this makes sense. Doing it at the end is bound to lead to suspicions. That is why I was asking the noble Baroness, Lady Cumberlege, to look at the wording of Amendment 183. I say to the Minister that he is putting his involvement at the wrong part of the process.

Lord Kamall: We agree with the noble Lord. We do not want to waste time by being able to come in only late in the process. To avoid egregious uses of power, all uses are subject to public law principles and challengeable by judicial review.
We agree with the intention behind Amendment 216 but we do not feel it is necessary. Commissioners, NHS England, NHS trusts, NHS foundation trusts and a range of other bodies are required to have regard to the NHS constitution in performing their functions, as set out in Section 2 of the Health Act 2009, which goes wider than this proposed duty that would apply to the Secretary of State.
In addition, the NHS pledges that all staff will be empowered to put forward ways to deliver better and safer services for patients and their families. If a service change is material, the commissioner has a duty to consult with all impacted parties to understand their views and these existing engagement duties can encompass NHS staff. Anyone can respond to a public consultation and there is well-established process and precedent for taking these views into account. Beyond the pledge itself, it is the responsibility of an employer to ensure that staff are appropriately engaged and involved in service change decisions. The need to engage and consult is contained within organisational policies and relevant employment legislation.
I have heard what a number of noble Lords have said, especially former Ministers, Secretaries of State and others involved in the system, and it is quite clear that I need to go back and consult further. In that spirit, I ask that noble Lords do not move their amendments, and hope that I have explained the reasons why.
Clause 40 agreed.
Amendments 177 and 178 not moved.

  
Schedule 6: Intervention powers over the reconfiguration of NHS services
  

Amendments 179 to 183 not moved.
Schedule 6 agreed.
Clauses 41 to 43 agreed.
Schedule 7 agreed.
Clause 44 agreed.

  
Clause 45: NHS trusts: wider effect of decisions
  

Amendments 184 to 186 not moved.
Clause 45 agreed.
Clauses 46 to 50 agreed.

  
Clause 51: Appointment of chair of NHS trusts
  

Amendment 187 not moved.
Clause 51 agreed.
Clauses 52 and 53 agreed.

  
Clause 54: Capital spending limits for NHS foundation trusts

Amendment 188

Lord Crisp: Moved by Lord Crisp
188: Clause 54, page 53, leave out lines 18 to 20 and insert—“(a) an individual trust, and(b) the capital expenditure limit.”Member’s explanatory statementThis amendment along with the other amendments in the name of Lord Crisp to Clause 54 seek to deliver the legislative proposals agreed with NHS England and NHS Improvement in 2019.

Lord Crisp: My Lords, my five amendments to Clause 54 follow on quite closely from the discussions we have just been having about direction. I am very grateful to the noble Baronesses, Lady Walmsley and Lady Morgan of Huyton, and my noble friend Lady Neuberger for their support for these amendments.
The Bill introduces a new power for NHS England to set capital spending limits for NHS foundation trusts. There are two points of context that are worth exploring here. First, obviously the Bill is all about integration, partnership and collective action, within which individual parties need to retain some autonomy as well as giving out more, or perhaps pooling, some sovereignty at the local level. We should also be aware that at the national level NHS foundation trusts’ capital comes within the overall capital allocated by Parliament, and so recognise that, at the end of the day, there needs to be some kind of reserve, backstop power to set foundation trusts’ capital limits.
It is all about achieving the right balance. I understand that three years ago, as part of the thinking behind these wider changes in the NHS when they were being developed, NHS England and NHS Improvement agreed with foundation trusts a set of proposals for this that were set out in the NHS’s 2019 legislation proposals. I am sure my noble friend Lord Stevens of Birmingham can comment on that as appropriate. This clause cuts right through these agreements.
My explanatory statement makes the terribly simple point that what I am trying to do here is to
“seek to deliver the legislative proposals agreed with NHS England and NHS Improvement in 2019.”
I do not see why that is not happening. So, my first question to the Minister is: please could he explain what has changed since 2019 and why the agreement that was struck then is no longer good enough for the current circumstances?
Secondly, these capital freedoms are important. NHS foundation trusts need to be able to invest in order to deliver their services. They need to be able to do so for their boards to be able to exercise their own accountability, and they need to be able to plan. There is also a slightly softer reason why these are important as well, which is about motivation. It is very clear that working efficiently to generate capital to create that freedom is a significant motivator for clinicians within these trusts. I say that as somebody who led two trusts—not foundation trusts—into trust status in the 1990s, and I know how big an issue that is in terms of the staff within these organisations.
So, against that background, these directions should be exceptional and not the rule, and these amendments set out quite clearly ways to make this work in practice. Amendment 188 states that any direction must be about an individual trust and for a specific region and not in any sense a blanket action. Amendment 189 says that it should be used only after all other means of managing a capital expenditure problem have been exhausted; it must be very much a last resort. Amendment 190 says that NHS England should account to Parliament for the action, giving the reasons—telling the story, if you like—and publishing them so that they can be seen very clearly. Amendment 191 makes it clear that any directions should cease after one year, and Amendment 192 is more minor tidying-up. This is a very clear set of amendments which would put in place the 2019 agreement. I see no reason why that should have changed.
I have three questions for the Minister. First, why is this a change from that agreement? What has changed? Why can we not just have that agreement? Secondly, does the Minister agree that this must be very much a last resort, and therefore needs to be hedged round with these sorts of amendments? Thirdly, will the Minister ask his officials to look at this again, perhaps with the involvement of representatives of NHS foundation trusts and NHS Providers, as indeed happened in 2019? I beg to move.

Baroness Henig: My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.

Baroness Brinton: My Lords, the amendments in this group, so ably introduced by the noble Lord, Lord Crisp, aim to restrict the powers of the Secretary of State to limit the capital spending of NHS foundation trusts and to ask for the reinstatement of the 2019 agreement. It is important to note that these amendments do not remove the powers as a whole but tighten them to avoid changes by the Secretary of State to funding that would delay capital works which are needed and urgent on health and safety grounds.
The current capital spending backlog is £9.2 billion, half of which is deemed to be high or significant risk, which is why it is shocking that, in October last year, the Government announced additional service funding for the NHS but did not include a capital settlement. Last summer, the NHS Confederation surveyed members, and found that 96% of healthcare leaders feared that  they would not receive enough capital money at the forthcoming spending review. The NHS Confederation rightly says that capital investment drives productivity improvements and that insufficient funding is likely to hamper the Government’s plans for the NHS. When NHS England, the Department for Health and Social Care, or Ministers have the ability to backtrack, delay or even cancel capital expenditure, conditions deteriorate, and sometimes there are serious incidents.
My town of Watford, in south-west Hertfordshire, has seen the impact of this capricious behaviour all too well. Twenty years ago, a reconfiguration plan was launched at West Herts Hospitals NHS Trust for a much-needed new hospital, which would replace three older hospitals in Watford, St Albans and Hemel Hempstead with a completely new one, which it was eventually agreed would be in Watford. Given the debate that we have just had on configuration, it is interesting that the councils, CCGs and other stakeholders worked closely and cross-party with the trust, with a new vision for hospital provision in our region. About 15 years ago, capital expenditure approval was given, and preparatory work on site clearing and new road access was all done by 2015, mostly funded by local councils. Since then, the department, Ministers and NHSE have stop-started capital funding for the next stages, with good news always coming in the run-up to a general election—ironic, really, given that in our community there is total cross-party support for the new hospital. The anger about further delays is cross-party too, definitely blaming the centre, whether that is Ministers or the NHS.
Under the 2010 configuration, the NHS capital expenditure plan lists said that the new hospital should have been completed this year. It has been taken off the list and put back on again three times in the last two years. Indeed, it is one of the 40 so-called new hospitals that this Government have announced as a new proposal on a regular basis, much to the bemusement, and sometimes amusement, of local residents.
In April 2020, the hospital had to declare a critical incident, as its oxygen infrastructure collapsed in the first wave of the pandemic. Because of the delays, the hospital had been begging for an oxygen system upgrade for years, warning that any bad winter would cause the oxygen system to fail. It was denied, because the new hospital was just around the corner. As a result of that, an emergency oxygen upgrade was put in place, but the new hospital is now 20 years overdue, and the building is creaking. The Department of Health now says that likely completion of the new hospital will be in 2028, assuming no further delays. What else will fail before then? This is not a foundation trust; it is a hospital trust, and it is still not protected from that behaviour.
These amendments would ensure that the stop-start model—removing permission and then reinstating permission—that many trusts such as Watford General Hospital face over years would be less capricious. It would give foundation trusts more assurance to long-term planning, avoid the high level of emergency repairs and need for temporary provision, and, above all, be a more transparent and fairer way to deliver  capital expenditure. Without the 2019 agreement, we risk putting foundation trusts back in the parlous stop-start model.

Lord Lansley: My Lords, I intervene briefly to say that I support the amendments in the name of the noble Lord, Lord Crisp. We are grateful to him for tabling them, and indeed for presenting them so very well.
I also rather enjoyed the opportunity from the noble Baroness, Lady Brinton, to think back to 2011, as I think it was, when I went to visit Watford General—I probably announced a new hospital then, but I cannot quite remember. She said the local connections were all funded by the local authority, and I seem to remember paying for the roundabout outside Watford General Hospital, because it was so instrumental to the process of the redevelopment. Anyway, that is by the way.
What I am really looking for from my noble friend on the Front Bench is to understand the mischief to which the Government’s proposals in Clause 54 are the remedy. Certainly, when I was Secretary of State—which is a long way back; we were not in deficit but we did not have a lot of money—the issue every year with the capital expenditure of FTs was that they always told us that they were going to spend a lot and then did not spend anything like as much. To account for that in the public accounting system, we had to make some heroic assumptions about how much less they would spend than they said they were going to spend.
It may be that the department is saying that the way we get round all this is to set very tight limits in the first place—to say where we think they are going and what we think they can spend. This, frankly, is a recipe for disaster for many trusts, because the reason they underspend is that there are so many difficulties in planning and executing capital expenditure projects.
I am trying to find out the purpose behind the Government taking such strong powers in relation to capital expenditure. I rather hope that they might see merit in the amendment from the noble Lord, Lord Crisp.

Lord Stevens of Birmingham: My Lords, I will be brief. In response to the noble Lord, Lord Lansley, in fairness, there is logic to the broad direction being set out by the Government here. As the financial health of foundation trusts improves, their ability to seek self-generated capital investment will, in all likelihood, be much higher, looking over the next four or five years, than it has been during the more constrained financial circumstances of prior years. So it is not unreasonable to have a set of measures in the Bill that would enable Ministers to ensure that the NHS sticks with the capital expenditure, voted for by Parliament, for the NHS in any given year; nor is it unreasonable on the part of the Government to seek to ensure that there is a mechanism by which that capital can be allocated fairly across the country according to need, rather than purely according to an individual institution’s ability to finance it.
All that being said, rather than this being a fundamental matter of principle in the way that our last two discussions have been, these amendments have a lot to commend them. They are entirely pragmatic and put the right  safeguards around what should be only an emergency power. As the noble Lord, Lord Crisp, laid out, that was the basis on which a consensus was achieved back in 2019. It provides good incentives at trust level for sound financial management and, frankly, it provides a bit of a pressure release or a safety valve against an overly artificially constrained capital settlement in certain years or parts of the country.
I very much hope that, in the constructive spirit with which I think these amendments are being advanced, this is something that the Government might consider favourably.

Baroness Neuberger: My Lords, I declare an interest as chair of University College London foundation trust. I want to echo everything that has been said. I do not really understand why what was a carefully negotiated agreement seems to have been reneged on. I think it would be great to have some kind of explanation from the Minister as to why that should be the case.
I rather agree with the noble Lord, Lord Lansley, that some of those freedoms for foundation trusts are essential, and that fettering foundation trusts too much will not do much good. I really want to agree with everybody and not waste any more time, but please can we have an explanation?

Baroness Walmsley: My Lords, I have added my name to the amendments in this group, so ably introduced by the noble Lord, Lord Crisp. The noble Lord, Lord Lansley, asked: what is the problem to which Clause 54 is the solution? But I want to know why the Government think that Clause 54 is the solution to the real problem. The real problem is that, over recent years, the funding focus has been on revenue to support the greater demands made on the health service, and, apart from occasional injections of extra capital funding, capital budgets have been inadequate. In the meantime, hospital trusts of both types—foundation and NHS—have found it impossible to keep up with the need for repair and maintenance to buildings and plant and, crucially, to invest in modern technologies that would enable them to deliver more effective care.
An NHS Confederation survey prior to the spending review in October last year found that 81% of leaders said an insufficient capital settlement could impact their ability to meet estate and service safety requirements, and 69% of leaders said a poor capital settlement threatens their ability to fully embed digital transformation in their care and even hampers their efforts to maintain staff levels or keep appropriate records of patients who need elective care. Many of our hospitals and clinics are located in very old buildings and some certainly show it, but capital funding has not kept up with demand for years, and this new Secretary of State power in Clause 54 will not solve the wider problem. St Mary’s Hospital in Paddington will need £1 billion to repair the hospital or services could be shut in six to nine years. Many buildings on the site date back to the hospital’s founding in 1845. One part of the hospital can no longer be used, as the building will no longer support the weight of modern hospital beds.
Annual statistics show that each year we do not invest enough and the problem only becomes bigger. We must keep reminding the Government of the consequences of this. It is worth noting that many areas of the country  with the worst health outcomes have older estates, so upgrading these estates will lead to better outcomes for these populations. This is a health inequality issue. The problems are not confined to England. I could tell noble Lords some terrible stories about my local hospital in Wales, where health is devolved. It is easy to find examples of maintenance issues from hospitals, as these get a lot of coverage. The headline “Hospital roof crumbling” is always of interest to local media. However, there are also thousands of small community hubs and mental health trusts that desperately need new and updated facilities and equipment too, and they cannot shout as loudly. The backlog currently stands at £9.2 billion, with half of that, as we have heard, described as involving a high or significant risk to staff and patients.
The new powers for the Secretary of State proposed in Clause 54 would restrict the spending of any individual foundation trust in the same way as NHS trusts are currently limited. This may appear to be fair, and I do not oppose the principle of the Secretary of State having the power. However, it appears to me to be contrary to the principle of freedom of the foundation trusts as outlined by the Government when they were set up, and certainly contrary to the agreement made by NHS England and NHS Improvement with the sector through the September 2019 legislative proposal mentioned by the noble Baroness, Lady Neuberger, which was the result of detailed negotiations with NHS Providers on behalf of their foundation trust members. The reason given by the Government is that this is in order to avoid the overall health budget being exceeded. However, the power needs to be a very narrow reserve power, to be used when all else has failed, and that is what these amendments would ensure.
The Health and Social Care Committee in another place has made it clear that the powers should be used only as a last resort. It has to be remembered that, if a repair needs to be done on the basis of health and safety but is not done, it is the trust that will be blamed for any harm that comes to staff or patients, not the Secretary of State. They are accountable, and that is right, but it does not help them to keep people safe. The noble Lord, Lord Crisp, has tabled this group of amendments to narrow the scope of the power, to ensure in outline what must be done before it is used and, crucially, in my opinion, to require the agreement of Parliament. Currently, the proposal, like many others in the Bill, cuts Parliament out completely. Where the Government are proposing to wipe out an agreement with the sector which is only just over two years old, there must be compelling reasons, mitigating actions and parliamentary scrutiny.

Baroness Merron: My Lords, I am grateful to the noble Lord, Lord Crisp, for introducing this group of amendments and setting out for your Lordships that what we need to see is a reasonable system of checks and balances which will serve financial flows and objectives and where, if tensions arise, they can be resolved quickly, fairly and transparently. Certainly, these amendments provide for this.
Currently, the situation we have in the Bill, as we have heard through the contributions of a number of noble Lords, is that we have a proposal for a power to limit  the capital spending of foundation trusts. As we have heard in this important though brief debate, such a use has to be carefully controlled. That is not least because appropriate freedom over capital spending is absolutely central if providers are to fulfil their responsibilities to deliver safe care, and not just safe care but care that provides for the locality in the way that is required—something the noble Baroness, Lady Neuberger, emphasised. The noble Lord, Lord Stevens, made the point that, although it is reasonable to have provisions in the Bill, what are the practical impact of those provisions and how extensive should they be? These are the questions which I believe we have before us, as articulated by the noble Lord, Lord Lansley.
Not only did we hear in the course of the debate that the Bill does not mirror the NHS England and NHS Improvement September 2019 legislative proposal, which is the bedrock of what we should be looking at, but we find in the Bill that the provision cuts entirely across the unequivocal position of the Health and Social Care Committee. It said that the power to set capital spending limits for foundation trusts
“should be used only as a last resort.”
I therefore hope that, in responding, the Minister will be able to explain to the Committee why the provisions in the Bill have not taken account of these important points, and points of agreement and good practice. I hope that he will reflect on the fact that these amendments improve the Bill and will feel able to take them forward.

Earl Howe: I am grateful to the noble Lord, Lord Crisp, for bringing this debate before the Committee. I have listened to him and other noble Lords with care. Before I turn to the detail, it may be helpful if I explain the reason why Clause 54 is in the Bill.
Clause 54 originated as a legislative proposal made by NHS England and NHS Improvement to the Government in 2019. In making this recommendation, NHS England, under the leadership of the noble Lord, Lord Stevens, worked closely with representatives of the foundation trust sector. The key principle behind this clause is a recognition that the interests of the whole system should be prioritised in decisions about capital spending while also respecting the freedoms and accountabilities of NHS foundation trusts.
The noble Lord, Lord Crisp, asked whether it was our intention that the power in the clause would be a last resort—absolutely yes. Clause 54 is a reserve power to be used only in extreme circumstances to avert the risk of a foundation trust pursuing its own private capital objectives—if I can put it that way—that are not prioritised at a system level. I say to my noble friend Lord Lansley that that is the potential mischief that the clause is trying to address.
The control will operate in the context of the new NHS capital regime, introduced in 2020-21, at ICS area level with planning at a system level to take a holistic view of the local healthcare needs and balancing the allocated operational envelope for providers at that level. Having a power to set capital spending limits for NHS foundation trusts, as can already be done for NHS trusts, ensures an equitable distribution of capital to better enable the investments with highest priority and that achieve the greatest benefits for patients.
At this point I will push back, in the nicest possible way, at the noble Baroness, Lady Walmsley, about the actual level of capital spend. At the spending review 2021, capital spending was set to increase over the Parliament to £32.2 billion for the period from 2022-23 to 2024-25. That includes a £5.9 billion capital investment for the NHS to tackle the backlog of non-emergency procedures and modernise digital technology. As a result, the Department of Health and Social Care’s core capital budget will reach its highest real-terms level since 2010.

Baroness Walmsley: Governments always tell us how much money they have spent, but the question is always: has it met the demand? The money that the Minister has just mentioned is to try to cover the backlog of elective procedures; it does not cover the backlog of repairs.

Earl Howe: There will be money to address the backlog of repairs within that total.
Of course, it is our intention that a capital limit would be imposed by NHS England only if other ways of resolution had been unsuccessful. I will take the Committee through some of the detail, because it is important.
Amendments 188 to 192 would further restrict how the power can be applied. Amendment 188 would modify the clause by inserting “individual trust”. This modification is unnecessary because new Section 42B already ensures that an order relates to a single trust.
Amendment 191 would limit the order to one financial year, but, instead of that, the guidance prepared by NHS England will set out that any capital expenditure limits will apply to individual, named foundation trusts. We envisage that most will apply for the period of budget allocation, which is a single financial year.
Amendment 189 would insert steps that NHS England must take before applying the control and limit when an order may be made. The amendment also links the power with the capital planning function held by ICBs in new Section 14Z54. That plan may not always relate to a single financial year and can be amended in year; for example, for big capital projects, the plan could be set for several years, and in such a scenario it would be difficult to determine whether a foundation trust exceeded the plan in the early years. Amendment 189 would undermine the ability to impose the limit in a timely way and would mean that any limit could realistically be applied only when an overspend had already occurred or was committed to. That would risk funding being unfairly taken away from other areas.
Amendments 190 and 192 contain a requirement to lay a report before Parliament alongside a statutory instrument containing the order. That would cause significant delays in the power’s application. There is already a requirement in the Bill for NHS England to publish any orders which place a capital limit on a foundation trust and for guidance to set out the circumstances in which it is likely to impose a limit. We expect the guidance will also state that representations made by the trust will be published by NHS England.
As I mentioned, it is our strong view, supported by NHS England, that the powers and safeguards in the Bill create a proportionate and fair balance.  These measures will ensure that if a foundation trust were actively to pursue capital expenditure that is not aligned with local priorities or affordable within local budgets, there is a means to prevent this as soon as possible.

Lord Crisp: I thank the Minister for that reply. I have one point to make and one question. My point is that an NHS foundation trust may cover an area that is bigger than one ICB, and some of the bigger ones obviously do, so it does not quite work in the way that the Minister talked about. My question, and it is my final question, is: will officials re-engage with NHS Providers on behalf of NHS foundation trusts to discuss this matter further in the light of what we are saying so forcefully to the Government about pragmatic solutions to find a way forward to achieve the right balance and what the Minister has said in his response?

Earl Howe: I had not quite finished the remarks I was going to make, so perhaps the noble Lord will bear with me. I was trying to say that the measures will ensure that there is certainty for all providers about their capital expenditure. It will also prevent the need unfairly to take planned funding away from other providers, such as NHS trusts, where NHS Improvement and, in future, NHS England, set routine capital expenditure limits just to keep expenditure within system control totals, or national capital limits when a foundation trust exceeds its capital limit. Operational detail of how capital expenditure limits are set is best dealt with, we think, in guidance, where we can ensure flexibility and future-proof the provision, rather than in the Bill.
I hope that those remarks are helpful and will persuade the noble Lord to withdraw his amendment this evening. I say to him, as I did at the start, that I have listened carefully to the points he has made in support of his amendments, and points made by other noble Lords, and I undertake to take these points away for further consideration between now and Report. I am aware that my officials are working closely with NHS Providers on a number of issues, and I very much hope that we can resolve any points of difference to everyone’s satisfaction.

Lord Crisp: I thank noble Lords who have spoken in support of the amendment, for the very clear message that has been given. I also thank the Minister for that reply and those final remarks about thinking about this further and discussing it as appropriate with NHS Providers. On that basis, I am very happy to withdraw my amendment.
Amendment 188 withdrawn.
Amendments 189 to 192 not moved.
Clause 54 agreed.
Clauses 55 to 58 agreed.

  
Clause 59: NHS foundation trusts: wider effect of decisions
  

Amendments 193 to 195 not moved.
Clause 59 agreed.
Clauses 60 and 61 agreed.
Amendment 196 not moved.
Schedule 8 agreed.
Clauses 62 and 63 agreed.
Schedule 9 agreed.
Clause 64 agreed.
Clauses 65 and 66 agreed.

  
Clause 67: Wider effect of decisions: licensing of health care providers
  

Amendments 197 and 198 not moved.
Clause 67 agreed.

  
Clause 68: The NHS payment scheme
  

Debate on whether Clause 68 should stand part of the Bill.

Lord Lansley: I am sorry to interrupt when the Committee was making such good progress. This clause brings into effect Schedule 10 as an NHS payment scheme, which is to replace the national tariff. Unlike the debates that we have just had about Clauses 39 and 40, I have initiated this stand-part debate not to argue that we should simply take it out but because I simply do not understand yet what the precise differences are that the Government intend between the national tariff and the new payment scheme. I am trying to find out more about it in order that we stand some chance, not least at Report, of seeing whether there is a reason to amend or simply approve what the Government are proposing.
We could have a long debate about this but I am not proposing to do so. If I may, I am going to ask a few questions of my noble friend but do not expect to receive all the answers straight away. These are often things that are easy to put down and send to noble Lords, because we will then have a chance at this stage to think about them before Report.
I can see one obvious difference. In new Section 114A, inserted by Schedule 10, new paragraph (b) includes in the payment scheme provision for payments for public health functions under the NHS Act 2006, which is specifically excluded in the tariff. I can see a difference. Beyond that, I start to lose track of what the differences might be.
The tariff under the 2012 legislation allows not only for payments for episodes of care but for services to be bundled; it allows for year of care budgets; I think it allows for—I cannot see any reason why it does not, and certainly work was done to look at this—outcomes-based pricing; and it allows for local price agreements or national prices. Many of the things which, on the face of it, the new payment scheme is designed to allow, seem already to be allowed. What are the differences?
My first question to my noble friend is this. There is no reference in the new NHS payment scheme to what are effectively national prices, such as the national tariff—if we ignore the word “tariff” and remember that it includes the word “national”. To what extent is the new NHS payment scheme designed to do away with national payments or national prices? In new subsection (3), there is different provision for the same service by reference to different circumstances or areas. We could therefore have regional and local pricing set nationally. That, to me, is an innovation, though I am not sure whether or not it is intended.
Secondly, the national tariff made specific reference to non-discrimination between providers by reference to their status, including, specifically, not paying private providers more than could be paid for a public sector or NHS provider. This new payment scheme refers to different provision for different descriptions of providers. Is it intended that the power should be taken back to pay different amounts to private providers than are paid for public sector providers?
On the payment scheme, there is a very complicated subsection, subsequent to that, that talks about provision of services resulting in
“a fair level of pay for providers of those services”
and refers to differences in costs and services provided. What is intended by that? On differences in services provided, I can see, for example, that if a price is being paid to one provider for a routine service and another provider—which may often be the NHS provider—provides intensive care back-up, the fact that this back-up is available should be reflected in the price they are paid, because, inherently, they have to provide additional resources for it. Is that what is intended? Are other differences likely to result from this?
I then come to my final, and in a way most important, question. I have discussed the point about the Government appearing—the noble Lord told me I was wrong about this—to have abolished the purchaser-provider split. Maybe I was wrong, because here, under the rules that are to be set, we find that they
“may allow or require a price to be agreed between the commissioner and the provider of a service.”
Under all this, the purchaser-provider split has re-emerged, somewhere in Schedule 10. Is that what this means, and is it to be agreed by negotiation or by reference to some other mechanism? One of the fundamental issues about the national tariff was that it was intended to be a negotiated outcome between NHS England and NHS Improvement, on behalf of the commissioners on one side and providers on the other. Who is going to engage in these negotiations and who will be the court of appeal, as it were, in relation to that? What is intended by the Government?
I ask all these questions because we just do not know any of the answers—I certainly do not, but maybe I am missing something. If the Government can share further information about some of these points, that would help me to know whether we want to help speed the clause on its way, or interfere with amendments on Report. I move that the clause does not stand part of the Bill.

Lord Davies of Brixton: I wish to address Amendments 201A, 201B and 201C—my name has been left off Amendment 201A for some reason, but I support all three. Indeed, I support the stand-part debate initiated by the noble Lord, Lord Lansley.
I have attended virtually the whole debate in Committee and have been pretty sparing in my contributions, but on this occasion, I am going to make three speeches in one. I have been asked to pass on the thoughts of my noble friend Lord Hendy, who is unable to be here this evening, particularly given the time—though we are meeting a bit earlier than we perhaps expected. The same is true of my noble friend Lady Blower. Both my noble friends have considerable experience in this area and wanted their thoughts to be added to our debates this evening.
My noble friend Lord Hendy tabled these amendments. I have his remarks here; what he says might be of assistance to the noble Lord, Lord Lansley, in that he explains that this Bill, among other things, is designed to facilitate the outsourcing to private contractors of NHS services which are currently carried out in-house. That may not be explicitly stated, but it is clearly one of the underlying aims.
That is the Government’s policy, even though it is firmly opposed by most of the citizens of this island. That said, the purpose of these amendments is to protect NHS workers from the consequences of this policy. Usually when public services are outsourced, the contractor makes profit by reducing the number of staff performing the work formerly done in house and by cutting staff wages, terms and conditions. The TUPE regulations mitigate that process, but usually only by delaying it.
These amendments do not prevent staff reductions consequent on outsourcing beyond the protections in TUPE. In any event, the danger of staff reductions is diminished, bearing in mind that at the end of last year the NHS had 93,000 vacancies and an additional 110,000 staff off sick, half with Covid.
Amendment 201A seeks to prevent cuts to the wages, terms and conditions of NHS staff who are outsourced, and prevent contractors’ staff on worse terms undercutting in-house staff. It does so by requiring that the pricing rules for paying contractors must preserve, then and for the future, NHS staff rates and terms as negotiated between the NHS unions and NHS employers. Payment of those prices will depend on honouring those terms.
I hope the Minister will accept the legitimacy of the need to protect NHS staff in this way, perhaps—my noble friend adds—by better drafted amendments than mine. I am sure the Minister recognises that NHS staff need protection from wage cuts consequent on outsourcing. We must not have a two-tier workforce.
NHS staff are grossly underpaid and the real value of their wages is falling. After years of pay freeze, last year’s miserable 3% wage increase is destroyed by 6% inflation this year. The inadequacy of their terms and conditions is the prime reason for the extraordinarily high level of vacancies—a vacancy rate that increases as more and more work is done by fewer hands. Only heroic dedication by NHS staff prevents the vacancy level becoming a catastrophe.
Amendment 201A also protects against a different kind of two-tier workforce: contractors using the NHS payment scheme to fund salaries above NHS rates to attract certain categories of staff away from NHS posts. The current starting salary for an NHS nurse is £25,655, whereas the equivalent in the private sector is £37,500. No one could begrudge nurses earning whatever they can for their vital work, but NHS funds should not be used to finance a higher rate outside the NHS than within it.
Amendments 201B and 201C are intended to ensure that unions are among the consultees on the likely impact of payment schemes. Obviously, the workforce should be consulted.
My noble friend Lady Blower added her name to all three amendments, and she draws our attention to the fact that my noble friend Lord Hendy is one of our foremost labour lawyers. Some in your Lordships’ House have long experience of trade unions and trade unionism. I therefore hope that they will recognise this quotation:
“Trade unions have been an essential force for social change, without which a semblance of a decent and humane society is impossible under capitalism.”
That was not Marx, Engels or any of the great leaders of the TUC, or a general secretary of a major trade union. The quotation is actually from Pope Francis. Given that we all want to live in a decent and humane society, we should all promote the important role of trade unions. This is in part what these amendments would do; they are about fairness and justice for workers.
We are no fans of privatisation: our vision of the NHS is a publicly funded and publicly delivered service, free to all at the point of delivery. However, the purpose of these amendments is to ensure decent and proper treatment of workers who find themselves in privatised or outsourced services. The amendments address the issue of funding, which must be available at an appropriate level to guard against downward pressure on the pay and conditions, including pensions, of all workers employed in the public sector. It is clearly important that trade unions have the role and responsibility to be at the table in negotiations—and have in the Bill the role and responsibility to be party to consultation that could impact relevant workers.
It would be nice, but folly, to believe that any company taking on NHS services, mostly in the private sector, will be motivated by altruism and a commitment to the original ideas of the NHS. Given that the motivation is far more likely to be the pursuit of profit, the amendments are clearly necessary. As both society and medical science change over time, the focus, functions and structure of the NHS may change too. From these Benches, there is a determination that any change should be helpful and supportive. It should not come at the expense of the workforce through exploitation by way of detriment to its terms and conditions.
Those are the first two speeches, and now I come to mine. The Committee may be relieved to know that I will simply say that I fully support the remarks of my noble friends and trust that the Minister will be able to give a helpful reply.

Lord Stevens of Birmingham: I shall briefly make two points. First, having looked at this quite carefully, it is good to see that there is nothing in the proposals for the payment scheme that would intrinsically give rise to the concerns just articulated. Secondly, in response to the noble Lord, Lord Lansley, there are very good answers that can be provided, even if not now, to the questions that he poses. One starting point would be to look at the judgment that the Court of Appeal handed down at the end of 2018, which essentially confirmed that what he said is correct. It is just about possible to torture the 2012 tariff system to make it fit for purpose, but an incredibly elaborate set of workarounds is required to do so, with an enormous amount of bureaucracy and that covers only about 60% of the fund flows in the National Health Service. Hence the desire for something more flexible, which this set of clauses enables the NHS to take forward.

Baroness Thornton: My Lords, it is very gratifying that so many noble Lords have decided to come in to take part in a debate about NHS finances tonight; I am very grateful for that.
I shall speak briefly to Amendments 199, 200 and 202A in my name. Amendment 199 provides that the Secretary of State must set out rules for determining the price to be paid for NHS services. Amendment 200 ensures that the key policy documents covering NHS services are approved by the Secretary of State. Amendment 202A provides that the rules must be subject to parliamentary scrutiny.
I am very pleased that the complexity of NHS funding was not mentioned in great detail tonight, but there has been speculation about how funding may work and how the various financial responsibilities in and across ICSs may develop. What we think we know is that complex funding approaches, such as payment by results, will become less important. In Clause 70 and the associated Schedule 10, however, the Bill is wonderfully uninformative. It just says, “Out with the old”—the national tariff—“and in with the new”, the NHS payment scheme. I am again with the noble Lord, Lord Lansley, in saying that these questions need to be answered, because they will affect the regulations, procurement rules and so on.
The payment scheme—actually, I am not going to talk about the history of the NHS payment scheme at this time of night, but, unless the Minister can justify it and answer the questions posed by the noble Lord, Lord Lansley, this part of the Bill should be quietly dropped. We seem to have something that works, so why replace it with something that we do not know very much about?

Lord Kamall: I thank the noble Baroness and echo her gratitude to all the noble Lords who have turned up for this group of amendments.
Before I turn to specific amendments, it may be helpful to make a few general points about the new payment scheme and explain why this clause should stand part of the Bill. For many years, the national tariff improved access to services and drove up quality across the NHS. The new scheme will build on that success. NHS England will continue to make rules determining the price paid to a provider, by a commissioner, for healthcare  services for the NHS, or for public health services commissioned on behalf of the Secretary of State. Also, expanding the powers to enable NHS England to set prices for public health services, such as maternity screening, will allow for seamless funding streams for different care episodes.
However, we need to update the NHS pricing systems to reflect the move towards a more integrated system focused on prevention, joint working and more care delivered in the community. This will support a move from a “payment by activity” approach, towards an approach that promotes integration and early intervention, while discouraging perverse incentives for patients to be treated in acute settings. It will allow flexibility over the current pricing scheme, and allow rules to set prices, formulas and factors that must be considered when determining the prices paid. I assure noble Lords that, when developing the scheme, NHS England will continue to consult any persons that it considers relevant, which will include ICBs, NHS trusts and foundation trusts, as well as trade unions and representative groups. I share the sentiments of the noble Lord, Lord Davies, about the valuable role that trade unions play in a free society.
I turn briefly to the points made by my noble friend Lord Lansley. On regional variation, the NHS payment scheme will encourage commissioners and providers within an integrated board area to work together to agree prices that are in line with the rules set out in the scheme. To date, only one provider has applied successfully for local modification, and closer working within ICBs should remove the need for disputes. On paying different providers differently, there may be scenarios where it is appropriate to pay non-NHS providers different prices from those paid to NHS providers, to take into account differences, different starting costs or a different range of services provided. There may also be cases where the financial regimes of different providers make it appropriate to set different prices or pricing rules. When setting any prices, NHS England will aim to ensure that prices paid represent a fair level of pay for the providers of those services, as well as fair pay between providers of similar services. We will not introduce competition on price rather than quality. We hope that these changes will increase the flexibility and reduce transactional bureaucracy at the ICP level.
I must disagree with the proposal in Amendment 199. While the Secretary of State will remain responsible for setting out overall funding for NHS England, NHS England, alongside Monitor, has set the rules successfully since 2013. I cannot see the benefit of this duty being transferred to the Secretary of State, beyond separating it further from those making operational decisions in the system. Following that logic, we must also reject Amendment 202A. However, I assure noble Lords that the payment scheme will be published in the usual way, and your Lordships will of course be able to table Questions, secure debates, hold us accountable and ensure that the mechanism is scrutinised.
I turn to Amendments 201B and 201C. As part of the broad consultation duties, we expect NHS England to work closely with trade unions and staff representative bodies, such as the Social Partnership Forum,  NHS Providers, the Healthcare Financial Management Association and all the royal colleges, when developing the national tariff.
On Amendment 200, I assure your Lordships that the NHS payment scheme will be published by NHS England following consultation. The Secretary of State will also have the general power to require NHS England to share the NHS payment scheme before publication, not to publish a payment scheme without approval, and to share the contents of the scheme should that be necessary.
On Amendment 201A, in setting the rules for the payment scheme, NHS England will of course want commissioners to consider staff pay, pensions and terms and conditions. NHS England will continue to take account of cost growth arising from uplifts to Agenda for Change. New Section 114C makes it clear that, before publishing the payment scheme, NHS England must consult any person that it thinks appropriate. Again, in practice we expect this to include representative bodies and trade unions. NHS England must also provide an impact assessment of the proposed scheme.
I hope I can reassure noble Lords that the department and NHS England remain committed to Agenda for Change. Independent providers will remain free to develop and adopt the terms and conditions of employment, including pay, that best help them attract and keep the staff they need. However, we expect that good employers would set wage rates that reflected the skills of their staff.
On Amendment 202, it is right that the commissioners and providers of NHS services should be able to make representations and, if they feel it necessary, object to pricing mechanisms set by NHS England in the payment scheme. That is why we have retained the duties to consult commissioners and providers. We have also retained the ability for ICBs and providers to make representations and to formally object in response to consultations on the NHS payment scheme, as they can with the national tariff.
The current prescribed thresholds are set by the National Health Service (Licensing and Pricing) (Amendment) Regulations 2015, and the current objection thresholds since 2015 have been set at 66%. My department consulted on these thresholds in 2015 and it remains the Government’s view that they are proportionate, preventing the delay of future payment scheme publications and giving the NHS the certainty that it needs to plan for future financial years.
If I have not answered all the questions from my noble friend Lord Lansley and others, I ask noble Lords to remind me and I will write to them. This has been a very important discussion—as we can see by the attendance—and I hope I have given enough reassurance to noble Lords for them not to move their amendments and have explained why the clause should stand part of the Bill.

Lord Lansley: My Lords, I am most grateful for the Minister’s response to that short debate and for the other contributions. I shall certainly look at the Court of Appeal judgment—was it the Court of Appeal? —and try to work through precisely where the problems are. There are two ways of dealings with this issue. One is to scrap the national tariff and put in a new payment scheme. The other is to start with the national  tariff and ask what the problems are and how we are going to deal with them, and I would quite like to work that through.
We may come back to this because there is an issue about how far the payment scheme is a national payment scheme and how far it becomes a local and varied one. That is a very interesting question, as is the way in which discrimination between providers may be implemented and for what purposes.
For the moment, though, I am very grateful to my noble friend for his response and for his promise to follow up on issues.
Clause 68 agreed.

  
Schedule 10: The NHS payment scheme
  

Amendments 199 to 202A not moved.
Schedule 10 agreed.

  
Clause 69: Regulations as to patient choice

Amendment 203

Moved by Baroness Meacher
203: Clause 69, page 62, line 19, at end insert—“(1AA) The regulations must make provision—(a) for anyone with a diagnosis of terminal illness to be offered a conversation about their holistic needs, wishes and preferences for the end of their life, including addressing support for their mental and physical health and wellbeing, financial and practical support, and support for their social relationships,(b) that, where that individual lacks capacity for such a conversation, it is offered to another relevant person, and(c) that for the purposes of section 12ZB a relevant authority must have regard to the needs and preferences recorded in such conversations in making decisions about the procurement of services.”Member’s explanatory statementThis amendment ensures that the scope of the regulations as to patient choice includes those at the end of life.

Baroness Meacher: My Lords, in moving Amendment 203, I declare my interest as chair of Dignity in Dying, the sister organisation of Compassion in Dying. This amendment is supported by Marie Curie, Together for Short Lives, Hospice UK, Sue Ryder and the Alzheimer’s Society, as well as Compassion in Dying, a national charity which enables people to prepare for the end of life. I thank them all for their support and their briefing. I apologise—I have cut my speech to the bone in light of the late hour.
This probing amendment aims to ensure that dying people are at the centre of decision-making about their care. It is not an attempt to change the law on assisted dying, although the principle of patient choice must be, in my view, central to palliative care as a whole, as well as to the right to choose a dignified death. It is impossible for health and care services to ensure this without having proper, honest conversations. People should be spoken to and listened to in order to find out their wishes, preferences and needs.
This amendment would go some way to ensuring that those conversations take place, that the outcome of those conversations are recorded—I know it sounds so simple, but it just does not happen—and, crucially, that services are designed around their decisions. These conversations are the first step in a process of advanced care planning, where the dying person’s wishes, needs and preferences are recorded in a written care plan. This could include an advanced decision to refuse treatment—a living will; nominating a trusted person to make decisions through a lasting power of attorney for health and welfare; writing an advanced statement of wishes; or completing a clinician-led care plan through a process such as ReSPECT.
Advanced care planning has been shown to have a significant positive impact for dying people and those close to them, because this process helps healthcare professionals to deliver more tailored care, care which the patient actually wants. When a similar amendment was debated in the Bill’s passage through the House of Commons, the Minister responded by expressing support for the principles of advanced care planning and recognition of the importance of patient choice at the end of life.
The absence of statutory underpinning until now probably explains why advanced care planning has never been widely recognised as fundamentally important—hence the relevance of this amendment. It requires that there are systems in place properly to record and share patients’ preferences, as I have said. Mechanisms must be put in place so that individuals’ wishes and decisions are easily accessible—that is no simple task, apparently—and can be respected by healthcare professionals. Real attention must be paid to the recorded wishes of patients on an individual and—even more importantly, funnily enough—a system level. This should include considering how services and funding need to be allocated so that investment is informed by real patient need. For example, if more people planning ahead results in fewer unwanted or inappropriate hospital admissions, this would in turn require greater investment in community-level care to support people approaching the end of life.
I hope the Minister will agree to meet before Report. I do not think this should be carried through to Report and votes and such like. But I hope that we can find a way forward to deal with what is essential for dying people. I look forward to the Minister’s response. I beg to move.

Lord McNicol of West Kilbride: I now call the noble Baroness, Lady Brinton, to speak remotely.

Baroness Brinton: My Lords, there are two amendments in this group, both dealing with end-of-life arrangements, and I support both of them. Amendment 203 in the name of the noble Baroness, Lady Meacher, would put on the face of the Bill an extremely important provision—that of giving anyone with an end-of-life diagnosis the right to a conversation about their needs, how and where they want to die, and how they can be given the support they need to achieve that. This is long overdue. Our excellent palliative  care and end-of-life healthcare clinicians and professionals carry out an invisible yet vital service to people. But unfortunately, it is not universal.
Why, oh why, as a nation, do we hate to talk about dying? I have seen both the best and worst in practice. Indeed, very recently, a friend in hospital who was told that he had a few weeks left wanted to go home to die. No one at the hospital used the phrases “end-of-life care” or “palliative care” or even talked about hospices. They thought he was not close enough to death to get to that stage. Instead, there were discussions about setting up the right domiciliary care, or possibly a care home through the council. This amendment would ensure that when the diagnosis of end of life is made, that conversation will happen for all patients. That is very welcome. It is too late for my friend, who died while he was still in hospital.
Amendment 297 in the name of the noble Lord, Lord Forsyth, sets out the requirement for the Secretary of State to lay a Bill before Parliament to permit terminally ill and mentally competent patients to end their own lives with medical assistance. I offer my deepest sympathies to the noble Lord, Lord Forsyth, on the death of his father. I look forward to hearing his speech on this amendment, and I apologise that, due to the remote contribution rules, I have to comment on it before he speaks.
Both the Private Member’s Bill brought by the noble Baroness, Lady Meacher, and before it the Private Member’s Bill brought by the noble and learned Lord, Lord Falconer of Thoroton, had exceptionally sensitive and thoughtful debates in your Lordships’ House, but neither has progressed any further. We know that public views have changed—like those of the noble Lord, Lord Forsyth—in light of sad family experiences of death where pain and trauma were not controlled and where, for too many people, access to palliative care and end-of-life care was just a lottery.
I have spoken in the debates on both those Private Members’ Bills in favour of assisted dying and remain firmly committed to campaigning for it, but that is not what tonight’s debate is about. If accepted, Amendment 297 would not immediately change the law on assisted dying. It would merely require Ministers to bring forward draft legislation, not even to campaign in its favour.
Government is well placed to draft the legislation, encourage a wider public debate through consultation and bring together voices and views from right across our society in a way that perhaps the polarised debate between individual MPs and Peers on such a complex issue always makes difficult. Government can and should maintain their neutrality on assisted dying, but they can guarantee sufficient time for the consideration of the legislation.
It is worth noting that in those jurisdictions where assisted dying has been made legal, there have not been the disastrous consequences predicted by opponents. Instead, those laws continue to receive huge popular support many years after legalisation. In no jurisdiction has any law been passed on assisted dying and  subsequently repealed, demonstrating perhaps that the fears of opponents to assisted dying have not come to pass.
The Crown Prosecution Service has recently opened a consultation on the introduction of a prosecution policy for homicides that can be categorised as mercy killings or suicide pacts. The prosecution guidelines, if approved, would add clarity to the law in the same way as the prosecution policy on assisted suicide adopted over a decade ago. While this is helpful, it does not change the law, and it cannot protect dying people with a legal choice of how to end their life, nor can it protect their families, as decisions would be made by the CPS only after the death of the person. I have seen a family friend have to go through the trauma of a police investigation after her husband took his own life. He deliberately chose a day when she was 100 miles away to protect her. It still took months for the police to make their decision and, frankly, it was cruel.
What we need above all is a commitment to a public consultation and parliamentary time for a wider debate on assisted dying. Amendment 297 provides that. It does not change the law on assisted dying. Tonight is not the right time for that, but I think the country is ready for that debate. Both these amendments are vital in their own way, and I hope that the Minister will be able to respond favourably.

Lord McNicol of West Kilbride: My Lords, the noble Baroness, Lady Campbell of Surbiton, is also taking part remotely. I invite her to speak.

Baroness Campbell of Surbiton: My Lords, I wish to oppose the two amendments in this group. Amendment 203 extends the scope of regulations on patient choice under the National Health Service Act to require particular services to be provided at the end of life. It is, I am afraid, clear from the speech made by the noble Baroness, Lady Meacher, on Amendments 47 and 52 in Committee that this is to include the right to assisted dying. It is directly linked to Amendment 297 in the name of the noble Lord, Lord Forsyth.
I am afraid I do believe that these two amendments are an attempt to hijack the Bill to promote a change in the law on assisted dying. I do not feel tonight is the time to discuss the merits or otherwise of assisted dying. By no stretch of the imagination is assisted dying within the scope of this Bill. There is a separate Private Member’s Bill already before this House, awaiting detailed scrutiny. That is the right vehicle to debate this issue and that is where it should be debated—not here, not tonight and certainly not at this late hour.
Moreover, Amendment 297 seeks to force the Government’s hand into requiring it to prepare a draft Bill on a subject that has not yet been agreed by Parliament. To date, the Government have, studiously and quite properly, taken a neutral stance. This amendment could be seen as a deliberate manipulation of the parliamentary process to provoke a viewpoint that is known to be contentious, and to force the pace of further scrutiny before Parliament, and before parliamentary time has been made for it.
Given the existing pressures on the Bill before us, these tactics are, I believe, truly not worthy of your Lordships’ House, so I hope that the Minister agrees  with me that the amendments should be rejected and withdrawn. This is not the place to have this debate.

Lord Forsyth of Drumlean: We have just listened to very powerful speeches by the noble Baronesses, Lady Campbell and Lady Brinton.
I would like to begin with an apology to all Members whose email inboxes have exploded over the last 48 hours. If it is any consolation, so did mine. I got the same emails, all of which were identical and came from the same email address, info@righttolife.org.uk. They began:
“Dear Lord Forsyth, I am making contact on an urgent matter. As you probably know, Lord Forsyth has tabled an assisted dying amendment to the Health and Care Bill, and this amendment will be debated next week. I am asking that you please oppose this dangerous amendment”.
The first point I would like to make is that it is very late at night, so I am going to keep my remarks brief. Contrary to what the noble Baroness, Lady Campbell, said, this has got nothing to do with the amendment of the noble Baroness, Lady Meacher. The reason that they are grouped together is because I asked for them to be grouped together; otherwise, it would have come up on a Friday when I could not be here. There is no common link in the terms of these being about assisted dying, and the noble Baroness, Lady Meacher, has explained why her amendment is not about that.
My amendment is not actually about the merits of assisted dying. It is true that I have changed my mind on this matter as a result of not just my own experience with my father but also because all the time that I opposed it I have felt a bit of a hypocrite, because if ever I was, for example, to contract motor neurone disease, I would want the right to assisted dying. I felt it was rather hypocritical to vote against something that I would want for myself. But I persuaded myself that I was doing so because there were certain protections that were needed. That is all I am going to say about that—and I was not going to say anything at all—because the noble Baroness, Lady Brinton, raised it. It is an unusual position to be proposing an amendment when it has already been opposed, before you have even spoken to it.
My amendment is not, absolutely not, about the merits of the case for legalising assisted dying. What it is about is trying to ensure that this Parliament is given the same opportunities as the Scottish Parliament to consider these matters carefully. I have to say to the noble Baroness, Lady Campbell, that it really is disingenuous to suggest that the Bill of the noble Baroness, Lady Meacher, before this Parliament will be given proper consideration. Her Bill will receive exactly the same fate as every other Private Member’s Bill. I am told that something like 200 amendments have been tabled to the Bill of the noble Baroness, Lady Meacher, so it is not going to succeed. The same thing happened with the Bill of the noble and learned Lord, Lord Falconer. The Private Member’s Bill procedure results in our inability to properly discuss the merits, the demerits and the protections that are needed, and over and over again this happens.
Many of the same people who, no doubt honestly and with real conviction, sent me all these emails, who did not actually have the courtesy to read my amendment, or even read whom they were sending their email to, will be encouraging Peers to table what are wrecking amendments to the Private Member’s Bill which prevent Parliament from having a view. It suggests to me that there are people in this debate who are determined to prevent Parliament being able to make a decision, and that cannot be right. So I have tabled this amendment.
In Scotland, the Liberal MSP Liam McArthur has taken advantage of the procedure which the Scottish Parliament has which allows for non-Government Bills to be given time and to be given assistance so that a consultation can be carried out with the public, so all matters can be considered. The Bill can then be brought before the Scottish Parliament and go through its whole process with proper protections from people making wrecking amendments to prevent the Bill being considered and voted on by those who are democratically elected—I am thinking here of the other place.
That procedure in Scotland has resulted in a very fine consultation document, the consultation period for which finished just before Christmas. There will be a Bill. I am told there is a majority in the Scottish Parliament in support of that Bill—although quite how people have reached that conclusion, given that the Bill has not been published, I do not know. Certainly, there have been several attempts in the Scottish Parliament to do this. My friend, the great SNP campaigner Margo MacDonald, herself suffering from a terminal illness, tried to get a Bill through the Scottish Parliament and did not succeed.
I think we need to have a little care here, because I am not particularly keen on opinion polls—particularly this week—and I realise that opinion polls are a crude method of working out what people think, but consistently opinion polls have shown that something like three out of four people and more in our country would like to see legislation in this area. I think it is quite wrong for people to try to deny Parliament the opportunity to carry that out.
Just to finish on the Scottish thing, as a unionist I am very nervous about a situation where a Bill was successful in the Scottish Parliament and there was some kind of procedure for a right to die for people with a terminal illness but the position in England was that we had not even been able to get Parliament to discuss the issue and consider a Bill properly. I do not think that would be a very good advertisement for this Parliament and for the democratic process in England.
I see my noble friend Lady Fraser of Craigmaddie, who wrote a very flattering article in the Times about me that was completely over the top, and then said that I was abusing parliamentary process by tabling my amendment. I have spoken to the clerks and have taken advice on this. I have a precedent for an Act requiring Her Majesty’s Government to publish a draft Bill. I must say it is not one I am particularly comfortable with, but the European Union (Withdrawal) Act 2018 contained precisely such a provision. It might perhaps be unusual but there is certainly nothing unprecedented about having a requirement on the Government to publish a draft Bill.
Those people who have been going round saying that this is an absolute abuse and completely unconstitutional need to read the amendment: it is for the Government to publish a draft Bill. I cannot for the life of me imagine why anyone would be opposed to the Government providing help and support through a draft Bill. It could be considered as a Private Member’s Bill, or by a Joint Committee of both Houses, or be subject to a whole range of processes that would enable people to express their views. It does not commit the Government to supporting the legislation but would allow Members of the House of Commons and of this House to express their views.
I promised the Chief Whip that I would not talk for very long. I hope that I can persuade my noble friend the Minister, and that the Government will indicate that they are prepared to help the provision of a draft Bill. Perhaps they will also recognise that no Private Members’ Bills reach the statute book without some support from government. It is not a neutral position that the Government maintain on this matter of conscience; it is not neutral to persist in a position which means that any Bill which is introduced is going to fail and which prevents Parliament from reaching a view. A neutral position is one that says we will allow Parliament to take a view and that we as a Government will not promote or oppose it but will give the opportunity for Parliament to do so.
I say to my noble friend that perhaps he could make a commitment this evening—perhaps he might even accept the amendment, which is a probing amendment. For those people listening to this debate and wondering whether there might be any votes, I am not proposing to divide the House at the Committee stage of this Bill, because I am really hopeful that my noble friend the Minister will come forward with a proposal that meets the expectations that this amendment is designed to achieve, and it will not be necessary for me to come back on Report.

Baroness Bennett of Manor Castle: My Lords, the Green group is operating on the lark and owl system —appropriately enough, you might say. My noble friend Lady Jones of Moulsecoomb attached her name to Amendment 203 in the name of the noble Baroness, Lady Meacher. I am going to be brief, as I am aware of the pressures. I find it very hard to see why anyone would resist Amendment 203. It is about providing appropriate structures and law to ensure that people’s views are heard and respected.
When I looked at this, I thought of the very old feminist slogan, “the personal is political”. What could be more personal or political than a person having control over the nature of their own death, being able to express their wishes and ensuring that they are heard and recorded.
It is worth saying that I was not able to take part in an earlier debate about the funding for palliative care. We should see much better investment in palliative care in the UK; we should not see volunteers rattling fundraising buckets for hospices to meet their basic needs. But that goes along with the right of individuals to be in control, knowing that they will be  heard and listened to, and their wishes acted on. That would allow them to be in a situation of much less fear.
I also want, very briefly, to offer the Green group’s support for Amendment 297. Support for assisted dying is Green Party policy. I want to reflect back to October last year, when the Private Member’s Bill was being debated. There was a very respectful, silent crowd outside, holding up signs saying “Choice, Compassion, Dignity”. I ask people considering this to make sure that those people can be heard in this House and this can be debated.
As the noble Lord, Lord Forsyth, said, it is not about a change in the law; it is about a guarantee of parliamentary consideration, as the courts have requested. It might surprise the noble Lord to know that I preceded him on this. I am trying to remember the details—I was not aware that any fuss had been made about this procedure, but it was either in the Agriculture Bill or the Environment Bill that I put down an amendment in this form. I would not consider myself a procedural innovator, so this is something that has been done many times before.
I want to make one final point. It is perhaps not of legal significance, but, in a way, it is a legal issue. Assisted dying is already available to people in our society—to people who have the funds, the knowledge and the remaining health to get to Dignitas, in Switzerland. This is very much an equalities issue around a right that some people have and some people do not. There is also the fact that, to be guaranteed to be fit to travel, some people are now dying before they need to because we have that inequality.

Baroness Hayter of Kentish Town: My Lords, I have added my name to Amendment 297 from the noble Lord, Lord Forsyth. He has made the case, so there is not much more to say. At the core of that amendment, in proposed new subsection (2)(b), all we are asking is
“to enable Parliament to consider the issue.”
That is really all we ask.
We know, as has been said, that the public want change. I believe that the House, at its full strength, wants change. The courts have said that it is not for them, judges, the Crown Prosecution Service, the Law Commission or anyone else to decide. It is the role of Parliament to take a decision of this importance.
By failing to allow a full debate and a decision in Parliament, as the noble Lord, Lord Forsyth, has just said, the Government are effectively siding with those who want no change. That is not a neutral position: it is allowing no change by forbidding those who want to put the issue to Parliament from being able to do that. That is done partly through the number of wrecking amendments that we have seen. I know that the Chief Whip has lots of other demands on his time, but my judgment is that, even if he did not, he would not give time for this—for what would be necessary, given the number of wrecking amendments.
All the Government are doing is accepting, as the noble Baroness, Lady Bennett, has just said, that people with money can go to Switzerland. More importantly, there are no safeguards. Those who oppose assisted  dying say that it exposes people to pressure from their families. The whole point of having safeguards is that you will have to go and get permission before it happens, and someone has to test that. At the moment, you can go to Switzerland and there is no check—there is not even a check for whether you are dying. There is no check on whether you are of fit mind; there is no check on whether you are under pressure from a family member. You can just go, if you have the money, but there are no checks. The Government are allowing that to continue: our citizens are able, if they have the money, without any safeguards, to go quite legally to that country and end their lives when they are facing the end of life anyway. That really is not how this country ought to be.
What is important is that we allow Parliament to decide. I can only think that those who have turned up wanting to oppose this are actually afraid that Parliament will decide that it wants change. I often do not like things that Parliament does—unsurprisingly, sitting where I do, on this side of the House—but we are a democratic country and we should let Parliament take the decision on this.

Lord Warner: My Lords, I support the amendment in the name of the noble Lord, Lord Forsyth. This is an unusual position for me; I do not remember in 22 years ever having supported an amendment tabled by the noble Lord. I am beginning my third decade in this House supporting change in the law. Who knows? I may have reached my fourth decade before we have got there.
During this time, I have watched many parts of the English-speaking world use their Parliaments to debate these issues and change their laws. This has now happened in Canada, New Zealand, five Australian states and 10 states in America and the District of Columbia. These changes have not been rushed through; they have been measured, considered and debated, and the populations have been consulted in the way described by the noble Lord, Lord Forsyth. It cannot be said to be right, if we live in a democracy, if the only way forward on an issue that is of great personal concern to many people is having to rely on Private Members’ Bills, which can be treated to wrecking amendments which make it almost impossible to progress a discussion and debate this issue. In the statesman-like way that the noble Lord, Lord Forsyth, has set this out, we should be impressed by the need to facilitate this debate within Parliament, as other countries have managed to do both in the English-speaking world and across Europe. Even countries such as Spain, with strong religious traditions, have allowed this debate to take place and changed their law as a consequence.
At the end of the day, this issue comes down to being a matter of personal choice. It is right that Parliament should be able to debate that issue of personal choice and facilitate the exercising of it by many people who are terminally ill if they wish to do so. They are not forcing anybody else down that path—it is a personal choice; it is a personal decision. Changing the law does not mandate anybody to do this; it is left to the individual, within the safeguards provided for in the legislation, to exercise that personal choice.
I have also added my name to Amendment 203 in the name of the noble Baroness, Lady Meacher. She makes it clear in that amendment that end-of-life issues are a matter of personal choice. We make many speeches in this House about patient choice, so why is it wrong to have more patient choice at the end of life when we have a lot of patient choice during it? We need to focus much more on patient choice. I support Amendment 203 as well as Amendment 297.

Baroness Young of Old Scone: My Lords, I think I am about to score a historic double whammy. I thought that I had stayed tonight to let some momentous words cross my lips that I never thought would do so—that is, I agree with everything that the noble Lord, Lord Forsyth has said—but, and I never thought I would say this, I also agree with every word that the noble Lord, Lord Warner, has said. How is that for a double whammy?
I do not want to delay the Committee, because it is late, but let me touch briefly on Amendment 203 in the name of the noble Baroness, Lady Meacher. I sat on the Commission on Assisted Dying, and we heard endlessly and quite heartrendingly from medical professionals, patients and relatives of those who had already passed away about the inadequacies of the discussion about choices at the end of life. At the moment, the legislation makes it almost impossible for healthcare professionals to open up that sort of conversation—we are not talking necessarily about assisted dying; we are talking about any sort of choices at the end of life. The amendment in the name of the noble Baroness is therefore much needed.
However, for heaven’s sake, on Amendment 297, the whole process of Private Members’ Bills is doomed to failure for something as important as this, which has been tackled by legislatures across the world. Yet we are frozen in this grand old Duke of York scenario, where we march up to the top of the hill at Second Reading on a Private Member’s Bill, then absolutely sod all happens after that and we all march back down again. We cannot continue to do that on a five-yearly basis for ever. This is not asking the Government to nail their colours to any particular side of the debate but simply to open up parliamentary time. I very much commend the noble Lord, Lord Forsyth—good grief— on his foresight in seeing this opportunity.

Lord Mackay of Clashfern: My Lords, your Lordships will know that I have known my noble friend Lord Forsyth as a noble friend and as a friend for many years. I know also that he is extremely good at putting forward a case—whether the case is well founded or not does not seem to matter too much.
We have a procedure in this House, which was established a long time ago, which says that government time is to be used for Bills presented by members of the Government. That is the rule generally. However, there is also a procedure for dealing with Private Members’ Bills. It has been used many times, and it has been used in connection with assisted dying during the present Session. We had a full day of discussion of the merits of that matter—exactly the merits of this matter; the arguments for and against are not for tonight. We are not here to argue for that  amount of time; it took a whole day with quite brief statements being made to express different views about this matter.
The Government are a member of those procedures; they are a party to the procedures that deal with Private Members’ Bills. The Government are there so that they can be asked in the course of the proceedings to help. From time to time, they decide that what is in issue is so important generally that it should be given government time. That is the procedure that has been laid down, and as far as I know in this case so far, the Government have not been asked to give time. They said at the end of the debate just two or three weeks ago that they were neutral and waiting for a decision from Parliament. It is Parliament that takes a decision; a Private Member’s Bill is a proceeding in Parliament. It is not just Parliament dealing with government Bills—Parliament deals with Private Members’ Bills also, as well as other kinds of Bills, such as hybrid Bills.
However, this Bill was in Parliament in the Private Member’s Bill system, which is the system that exists just now. If my noble friend, with his skill, wants to suggest a different sort of procedure for Members’ Bills, he can go about it, but to try to break out of the present system a new system for this sort of Private Member’s Bill will produce a complete wreck of the present procedure when no new procedure is being introduced. The Government have from time to time given time for a Bill to be taken forward, which has reached the statute book. That is the procedure which is available now, and it is the proper procedure to ask for.
This procedure is about trying to put an amendment into a health Bill, which has no mention of this, to amend the law on assisted suicide. That is the essence of this—the heading in the amendment is “Assisted dying”—which would mean an unnecessary amendment to the law relating to assisted suicide in his country. There is no question about that. There is nothing about that in the Long Title of the Bill. This Bill is not the proper machinery for raising this matter. It is not my responsibility or an option to deal with the merits of the case. I made a speech in the debate two or three weeks ago towards the end. I think my noble friend was not able to be present, if I remember rightly.

Lord Forsyth of Drumlean: I was able to be there, but as we got only three minutes to debate it, I did not think it was possible to deal with the very complex issues in that time. My noble and learned friend is making the case against the amendment that it requires the Government to produce a Bill. It does not. It requires them to produce a draft Bill. If my amendment had said that the Government should bring forward their own Bill, then my noble and learned friend would be quite right, but I would not have been able to table such an amendment because it would have been out of order for the reasons he has given.

Lord Mackay of Clashfern: Exactly. A draft Bill is preliminary to a Bill; it is not there for the purpose of not being considered. A draft Bill is for making a proposal the subject of an ordinary parliamentary Bill, which has the same authority as a government Bill. All Bills are produced in draft; some are considered  in draft in pre-legislative scrutiny. A Bill has to be in draft at some stage, but the object of producing this Bill is not that it should remain in draft but that it should be considered. The amendment does not say how long it should be allowed, but that is another matter. The point is that there is already a procedure by which government help can be obtained if it is asked for in the proper situation of Private Members’ Bills.
I think it is wrong in principle to consider the merits of this matter tonight. Some remarks have been made about that, and I refrain from making any remarks about it because I do not think that that is what is needed here. I submit that it is a view well founded on the rules that Private Members’ Bills are drafted by the private Member, are submitted and then are subject to procedure in the Private Members’ Bills system, including if the Government think it is right that they give additional time.
It is also questionable whether this Motion is in order, since the matter has already been discussed in this Session. There is a question about whether having have a separate procedure raising the issue in much the same form as it was considered some weeks ago is in proper order.
But my main point is about the procedure for dealing with Private Members’ Bills in our Parliament—we are not in the Scottish Parliament at the moment, and there may be some question as to whether my noble friend would like to be—and we have to apply the rules in this Parliament. In my submission, applying the rules of this Parliament, if we want help from the Government, it is to be asked for in the Private Members’ Bill procedures and the Government may, for all I know, be prepared to do something along the lines that my noble friend has suggested.

Lord Moylan: My Lords, I wish primarily to speak to the amendment standing in the name of the noble Baroness, Lady Meacher, but, before I do so, may I just reply, without any hint of rancour, to the comments made by the noble Baroness, Lady Hayter? She repeatedly described the amendments tabled to the Assisted Dying Bill as “wrecking amendments”. Certainly, my amendments are not intended to be wrecking amendments; the Bill raises very important consequences for the National Health Service, and my amendments are primarily about the effect on the relationship between doctors and patients. These are important considerations, and to call them wrecking amendments is a little unfair. I say that without any rancour at all.
I was very impressed—before I get to Amendment 203, I shall comment on Amendment 297—by the remarks just made by my noble and learned friend Lord Mackay. My noble friend Lord Forsyth referred to a precedent, but my understanding is that that precedent was a case where the Government themselves brought forward legislation mandating themselves to bring forward a Bill. At least nobody was imposing on the Government something that they did not want to do. The idea that we can impose on the Government something that  they do not want to do, for which they have no electoral mandate and which is not on their policy platform, seems an abuse.
It is an abuse with which one could have great fun in future. I am already thinking of an amendment to some piece of legislation that might come up that would mandate the noble Lord, Lord Forsyth of Drumlean, to bring forward a Bill requiring the nationalisation of all land and means of production. I think he might find it uncongenial to have to bring forward such a Bill, but once it was in statute he would have no choice. We are in a similar position here. As my noble and learned friend has pointed out, producing a draft Bill is not for the purpose of decorating the room with wallpaper; it is preliminary to moving legislation, and I think that the Government should be allowed to choose which legislation to bring forward—and they are accountable to the electorate for that which they do.
I turn briefly to Amendment 203. I have some sympathy in principle with what the noble Baroness is trying to achieve here. I shall be fairly brief. I can well imagine that there are occasions when people who are still conscious, still capable of understanding their own affairs, and aware that they are approaching their end of life, might wish to have conversations that are not easy to have, and where there are not always channels available for them to have one. I take the simple example: someone might want to say, “Have you actually thought about your will? Have you updated it? Are you content with your testamentary disposition?” I can see why that might be a difficult conversation for a member of the family to bring up, and there might be few other opportunities. So I see the good intentions behind the amendment.
What I have difficulty with, and this is a genuine difficulty, is whether it would work if it were part of statute. It is meant to be part of a set of regulations. I am currently engaged in the annoying business of trying to move my savings around. Because of regulation, I have to fill in a form asking a whole set of inane questions, most of which are not pertinent to me, because that is what the regulations require and what the lawyers have said to the fund provider that the regulations require, and so forth. What terrifies me about the prospect of proceeding with this really quite essential idea within a statutory context is that it quickly degenerates into a tick-box exercise that has to be completed—you can imagine the rush to complete it before patient A dies. The questions will often not be appropriate. It might be carried out with great sensitivity but it might be carried out with insensitivity. It might be welcomed or it might be resented.
In my view, this sort of conversation ought to be available to people in the circumstances that we have discussed. I say only that this is the wrong route, and it would be better if its provision were pursued through the charitable and pastoral sector rather than through being embedded in what will inevitably be an insensitive statute.

Baroness Wheatcroft: I support both these amendments. I have listened to the noble Lord, Lord Moylan. In answer to his points on Amendment 203, it is highly relevant that organisations such as Marie Curie  want this legislation in the Bill. Marie Curie’s nurses work tirelessly to make the end of life as gentle and congenial as possible for so many patients, but if they believe that this would help them, I would certainly support the amendment.
I agree with the noble Baroness, Lady Brinton, that in this country people are too frightened to talk about dying, and that is what we are talking about tonight—and for some it will be painful. Nevertheless, dying is a subject that nurses and those in hospitals should be empowered to feel comfortable discussing with their patients, and Amendment 203 should help with that.
It is with some trepidation that I venture to support Amendment 297, having heard the noble and learned Lord—

Noble Lords: Lord Mackay.

Baroness Wheatcroft: Yes, Lord Mackay. Your Lordships can see how nervous it makes me feel! I think that, in this particular situation, private Members’ Bills have failed, and the Government show absolutely no intention of moving on something that is so crucial to so many people. Although you have to be wary of opinion polls, it seems perfectly clear that opinion in this country has moved and that a majority of people would like not to have assisted dying made mandatory but to have the choice at the end of life of how they say farewell.
Like others, my inbox has been inundated, and I have tried to reply to one or two of those who have been opposed to the proposal from the noble Lord, Lord Forsyth. One doctor, Dr Whitehouse, a palliative care doctor, wrote to tell me that nobody had come to him whom he could not help, and it was very important that everybody should treasure their short remaining time, and palliative care would do that and assisted dying should be resisted. I wrote back to him a week ago through email—he gave me his email address—and said that I wanted to know more. I am a firm believer in palliative care; it works wonders, and it has improved hugely over the years, but I do not believe that it works in every case. I asked him whether it worked, for instance, with motor neurone disease, or whether it could cope with the incontinence which makes the end of life such a discomfort and an indignity for so many people—or did the help that could be provided mean only understanding and care, which does not necessarily deal with the indignity at all? Noble Lords will not be surprised to learn that I have not heard back from Dr Whitehouse, and neither do I expect to.
This matter polarises people, but the amendment is asking merely that Parliament should have the chance to debate a matter that is crucial to parliamentary Members and, more importantly, the constituents who vote for them. I support both amendments.

Baroness Finlay of Llandaff: My Lords, I declare all my interests in palliative care and as a director of Living Well Dying Well and vice-president of Marie Curie and of Hospice UK. There are two amendments in this group. I do not intend to lay out all the arguments against the amendment proposed by the noble Lord, Lord Forsyth. Indeed, the noble Lord was right that we had only three-minute speeches when we  debated the Bill proposed by the noble Baroness, Lady Meacher. However, I remind the Committee that the Bill put forward in the other place by Rob Marris MP actually failed—it was voted out—and it was one that came high in the ballot, so if it had been voted in it would have progressed quite well.
Personally, I do not think this is the place for us to debate assisted dying, which would need a change in the criminal law. The procedural issues have been clearly explained by the noble and learned Lord, Lord Mackay of Clashfern. The noble Lord, Lord Forsyth, spoke about the right to die. I remind him that everybody is going to die—it is an inalienable right. What he is talking about is licensing some people to provide lethal drugs to others, against a set of criteria. I remind him that three-quarters of people in my branch of the profession—specialist palliative medicine—who look after these patients all the time, not only do not want the law to change but do not want anything to do with it in the event it changes.
The claim has been made that palliative care is not a panacea. Assisted dying is not a universal panacea either. There is a 6.9% complication rate in Oregon, which is experimenting with the fourth drug cocktail in seven years. I remind the Committee, because I have made a plea for specialist palliative care, that it is estimated that 118,000 patients each year in the UK cannot access specialist palliative care. That is why I have an amendment tabled to the Bill, which I hope the Government will look favourably on. Areas where assisted dying has happened rank low on end-of-life care compared to the UK. Areas with assisted dying have dropped in the rankings for palliative care since 2015 compared to areas which did not change the law.
Amendment 203 is well intentioned and builds on all the moves for advanced care planning that are spearheaded by specialist palliative care. I know it was drafted originally with Marie Curie’s help, because it initially discussed with me whether I would table it, but I did not and did not sign it for two reasons. First, it is imperative that such conversations begin early, are part of ongoing care and do not become a tick-box exercise which says, “Conversation offered—tick”. That risks all the dangers of what happened with the Liverpool care pathway. Sadly, I have seen all too often a patient being told, “But that’s what you said you wanted”, when their needs have changed. Much research on advanced care planning has been done by my colleagues in my team in Wales. This has now informed some of the moves that are happening. Having open conversations is something that patients want, and the clinicians trained in communication skills want to provide those openings and do.
The second reason that I was concerned about this is that excellent draft guidance on advanced care planning has been developed by NHS England and NHS Improvement, and is near to being published; I had the privilege of being consulted on the final draft. It sets out core principles that such planning must always be a voluntary process and that every effort must be made to help someone express their views and preferences. The person is central to developing and agreeing their advanced care plan with agreed outcomes that are shared in partnership with relevant professionals.  They have a record of the shareable plan and are encouraged to review and revise it so that they can change their mind at any time. In addition, anyone involved can speak up if they feel that the principles are not being followed.
The very sensitive approach set out in the guidance recognises that people have different levels of preparedness for such conversations; that their perception of their illness evolves over time; and that, in the crisis of being given a diagnosis or told of disease recurrence, the views that a person expresses may subsequently change as they reframe their experience. The first step is to start with an exploration of how much the person wants to be involved, what matters to them, and the pace and language that matches the person, as well as that they are listened to and understood.
The amendment asks for a “relevant authority” to
“have regard to the needs and preferences recorded … in making decisions about the procurement of services.”
I hope that the Government can see that, by providing specialist palliative care as a core service, the type of bureaucratic delays that would be involved in procuring services would be completely replaced by a rapidly responsive specialist service that can address the person’s needs in all domains. The amendment also uses the term “relevant person”. If it were used as in the Mental Capacity (Amendment) Act, that person could turn out to be the care home manager, who may actually have competing interests and therefore is inappropriate.
A comprehensive survey of over 2,000 people by Cardiff University’s Marie Curie research department reported that people listed their top priorities towards the end of life as timely access to care at 84%, and being surrounded by loved ones at 62%. Being home was a priority for only 24%.
This is a well-intentioned amendment but it has now been replaced by the extensive consideration of the consultation and production of comprehensive guidance.

Lord Flight: My Lords, I support the amendment of the noble Lord, Lord Forsyth, but was asked at short notice by my noble friend Lord Suri to present his contribution. He makes the point that we humans look after animals and other living creatures with the highest levels of care—

Lord Ashton of Hyde: The normal convention in this House is that if a Member is not present at the beginning and end of a debate, they should not speak. It is not right to read out someone else’s speech.

Bishop of Carlisle: My Lords, I recognise and respect the integrity and passion that underlie Amendment 297. However, I rise to agree wholeheartedly and briefly with those noble Lords and noble and learned Lords who have already expressed their significant reservations about it.
There are two problems in particular with that amendment. The first has to do with the many contentious arguments for and against any legislation permitting assisted dying, some of which have already been mentioned. Tempting though it is to rehearse some  more of those, I am conscious not only of the time but of the fact that they have already been presented recently and at length, as we have been reminded by the noble and learned Lord, Lord Mackay, at Second Reading of the Assisted Dying Bill here in your Lordships’ House. The ongoing process of that Bill, however slow it may be, should not be undermined. We have also been assured that this is not primarily what Amendment 297 is all about. I might add that the terminology of that amendment is unhelpfully vague. “Vague” is a word that has already been used more than once in the debate today. For instance, we might ask exactly what is meant by “terminally ill” or “medical assistance”.
The second problem, which has already been persuasively argued, concerns the attempted use of this Health and Care Bill potentially, if not directly, to change the law on assisted dying. The proper place for any amendment of this kind should be Committee on the Assisted Dying Bill, not Committee on this Bill, which would be subverted were this amendment to be accepted.
With regard to Amendment 203 in this group, whether or not it is deliberately linked, it is evidently concerned to address the holistic needs of those approaching the end of their lives, and that includes, of course, talking about death. That is something that we would all wish to encourage. However, there is again an issue of vagueness in the amendment, as in Amendment 297. For example,
“wishes and preferences for the end of their life”
could include almost anything, from repeated albeit futile chemotherapy, through bucket list wishes, to assisted suicide. Who decides, and how, that someone lacks capacity for engaging in a conversation about their holistic needs? Who is a “relevant person”, as we have just been reminded by the noble Baroness, Lady Finlay? Then, in proposed new paragraph (c), what does
“having regard to the needs and preferences recorded in such conversations”
actually entail?
Most of what is proposed in the amendment is already covered in End of Life Care for Adults: Service Delivery, NICE guideline NG142, which was published on 16 October 2019. Perhaps it would be simpler just to require healthcare professionals to meet the requirements of that guideline, which would address the heart of the amendment’s stated, and laudable, objective.

Lord Carlile of Berriew: My Lords, it is a real pleasure to follow the right reverend Prelate and, given the similarity between his see and my name, I hope I may be able to slipstream some of his authority.
I entirely agree with the noble and learned Lord, Lord Mackay of Clashfern, and the noble Lord, Lord Moylan, that this is not a debate in which we should be having Second Reading discussions about the principle of assisted dying, and I shall absolutely not do so.
I start by saying a few words about Amendment 203. I was greatly relieved when my noble friend Lady Meacher immediately revealed it to be only a probing amendment, because I had taken the trouble of reading proposed  new paragraph (b). This is not the occasion for me to indulge or deploy my inner Rumpole or Henry Cecil by telling your Lordships stories of frauds committed on families by greedy relatives and the like—although there are many to be found in the annals of the criminal courts, even from the time when I practised in north Wales. However, the words “another relevant person” are an absolute recipe for undue influence and ostensible but completely fraudulent carers. I am very surprised that my noble friend, for whom I have enormous respect, thought it right to present such a vague piece of drafting to the House on this occasion.
I am very concerned in relation to both Amendment 203 and Amendment 297 about parliamentary procedure and statutory integrity. I have huge regard for the noble Lord, Lord Forsyth, who is one of our very greatest debaters in this House, and so I listened to him with great care. It has been an unusual occasion to hear him relying on a Liberal Democrat Peer in Scotland and the Scottish Parliament. I am not sure that I have heard him deploy that juxtaposition before—and I am pleased to see that he sees the funny side of that himself. However, I beg him, before Report, to consider whether he has got his concept right or wrong, for I would say that, conceptually, what he proposes is wrong.
I do not want to repeat what was said so clearly by the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Moylan—it does not need to be repeated, and I would diminish it if I tried to—but there are a couple of points to add. One was alluded to very graphically by the noble Lord, Lord Moylan. If, as a rule, one could table an amendment simply saying that the Government—or anyone else, for that matter, as the noble Lord suggested—should present a draft Bill to Parliament, it would be impossible to control. Reference was made to the 200 amendments tabled to the absolutely extant Bill of the noble Baroness, Lady Meacher—it is a living Bill and it can still be debated. It is extremely unfair to suggest, as one noble Baroness did, that those were wrecking amendments. Some of them may be, but the great majority of them are substantive amendments seeking to safeguard vulnerable people. That is one of the things that the private Members’ procedure is for. When a private Member presents a Bill to Parliament—and many have passed; it is not a futile gesture—it has to withstand the same parliamentary scrutiny that we give to the Government when they present Bills before Parliament, such as the police Bill, debates on which a number of us here have been taking part in recently.
Furthermore, let us suppose that the clause from the noble Lord, Lord Forsyth, was passed and that within the 12 months that followed the Government decided not to present a draft Bill to Parliament. I do not believe—though I may be disabused of this by greater judicial minds than mine—that the court would have the power, other than possibly to advise, to order the Government to present such a Bill to Parliament, because that would be a breach of the separation of powers. I do not believe that any judge, other than in a nightmare, would see themselves doing that.

Lord Forsyth of Drumlean: My Lords—

Lord Carlile of Berriew: I will give way at the end of this sentence. It seems to me that what the noble Lord, Lord Forsyth, is proposing is simply not going to be effective, so what on earth is the point of presenting it?

Lord Forsyth of Drumlean: I rise with some trepidation to take on the noble Lord, Lord Carlile, but could he just reference the point that I made that my amendment does not seek for the Government to produce a Bill? It is a draft Bill. There is no compulsion on the Government to give it time or anything else, and therefore no notion that one would go to the courts. What I am trying to do here is break the logjam. It is completely disingenuous to suggest that we have a Bill before us; we all know that that Bill is going absolutely nowhere, like all its predecessors.

Lord Carlile of Berriew: The noble Lord is trespassing on the old Social Democratic Party by using words like disingenuous. I will give him an example: some years ago, I chaired a Joint Select Committee of both Houses of Parliament dealing with the draft Mental Health Bill. That particular Bill was never enacted after our year of meetings and the report that we produced, but there was not a single person or NGO—including some that have been mentioned today—that did not believe that it was a parliamentary Bill. A Bill is a Bill is a Bill. In this Parliament we have draft Bills but not half Bills. That is my answer to the noble Lord.
I do not want to take up more time. I finish by saying that I think this is a completely misconceived proposal, both procedurally and, were we to come to it, on the merits.

Baroness Smith of Newnham: My Lords, I shall speak to both amendments but I shall speak first to Amendment 203, which, on the face of it, I am minded to support.
My reason for that—I hope this is not seen as a Second Reading speech—is that two years ago, just before Christmas, my mother contacted me and said she thought she had terminal cancer. She was taken to hospital two weeks before Christmas and died on Boxing Day, not of terminal cancer but of end-of-life COPD. I had no idea that she had end-of-life COPD, although I knew she had COPD. On Christmas morning, I was summoned to the hospital, and a junior doctor asked me what I wanted to do: “Your mother’s been a bit unconscious. What do you want us to do? Do you want us to wake her up? Do you want us to do anything?” That is not really the best conversation to have. The next morning, Boxing Day, I had almost exactly the same telephone call: “Please come to the hospital, your mother is very ill.” I said that I had had the same conversation yesterday. However, on this occasion I was summoned in and met a doctor who spoke to me with compassion. My father and I agreed that my mother should not be resuscitated. I had never had that conversation with her, but, when I went through her things, I discovered that she had completed a form that said: “End-of-life COPD. When in doubt, do not resuscitate.”
So, in many ways the amendment in the name of the noble Baroness, Lady Meacher, is very attractive because it is surely right that, towards the end of their lives, people talk about what is appropriate.
However, I share the considerable concern articulated by the noble Lord, Lord Carlile. Sub-paragraph (b) talks about “another relevant person”. Who is such a person? It might be somebody’s closest relative, or it might be a care home manager or a random friend. It is sloppy drafting. I am glad to know that this is a probing amendment, because I think there are interesting aspects to it, but, as the noble Baroness, Lady Finlay, said, it may be that the new comprehensive guidance on palliative care and end-of-life care is more appropriate.
These are clearly issues that your Lordships’ House and the other place should think about, but we should think about them in exactly the way we always engage on legislation, which is through very detailed scrutiny. This is where Amendment 297 goes quite off track. The noble Lord, Lord Forsyth, has said on at least one occasion now—I think he may have said it three times already this evening—“This is not a Bill that is being proposed; it is only a draft Bill.” Yet it is very difficult, as the noble and learned Lord suggested, to see the difference between a draft Bill and a Bill, in particular when Amendment 297 says:
“the Secretary of State must take account of the need … to enable Parliament to consider the issue.”
Surely, that is putting a duty on the Government, and this is not the right Bill to be discussing assisted dying.
There is still a live Bill—the Private Member’s Bill in the name of the noble Baroness, Lady Meacher. We have already begun some detailed scrutiny through discussions at Second Reading. Perhaps the noble Baroness can tell us when she has requested that Committee should happen, because there are many amendments tabled to that Bill. Tonight is not the time for the substance, but the noble Baroness, Lady Hayter, suggested that many of the amendments are time-wasting, wrecking amendments, and I confess that my amendment is the first one.

Baroness Meacher: It might help the Committee if I make clear that, as I understand it, all our Fridays are taken up, because people are talking so long on all these Bills that we are having to use Fridays for government business, and also there are lots of Private Members’ Bills with Second Readings to come. So my understanding is that we have done what we can do with my Bill.

Baroness Smith of Newnham: My Lords, perhaps the Minister, in replying, can tell the Committee whether he will talk to the usual channels, especially since I note that the Chief Whip and the Deputy Leader are both in their places, about whether time could be made available for further discussion of the Bill that is extant. Because whatever the merits or demerits of assisted dying, this is not the Bill for such an amendment.

Lord Ashton of Hyde: My Lords, the noble Baroness, Lady Grey-Thompson, has been trying to get in for a while.

Baroness Grey-Thompson: My Lords, I want to react very briefly to one comment that has been made in debate tonight, which is the issue flagged by my noble friend Lady Wheatcroft. It is something that is continually raised in the wider debate on assisted dying and it is the issue of incontinence being seen as so inherently tragic that people should use it as a reason to want to end their lives. It is considered an important subject; we have an all-party group on it.
Personally, I find it really difficult because I am incontinent and I have never once felt undignified by it. I cannot believe that I am the only person in the House, or, indeed, in the Chamber tonight, who is incontinent and I will happily discuss the many solutions for sorting out this problem. What I see is that people are scared to talk about it, because they think it is something that we should never discuss. I have many solutions for this. I intermittently catheterise; I use indwelling catheters; I have lots of options available to me if those do not work—medication and lots of options on surgery. There is nothing undignified about being incontinent if we support it properly.

Lord Aberdare: My Lords, both these amendments reflect a desire to give people a greater say over the final weeks of their lives. As a strong believer in patient choice, which is, after all, a very central part of this Bill, I am greatly attracted by and supportive of my noble friend’s Amendment 203.
As several noble Lords have said, we are not very good at thinking about, planning for and managing death, despite Benjamin Franklin’s observation that it is one of only two certainties in this world, along with taxes. This amendment would give people diagnosed with a terminal illness the possibility of some degree of agency in their final days. That seems to me a wonderful idea, but it does of course raise questions about who such discussions would be with, and what qualifications might be needed by the people offering them. So, while I support the amendment, I would want to know more about the practicalities of delivering it, hopefully without having to create a whole new regulated profession of mortality consultants. I hope therefore that the Minister will respond positively to my noble friend’s suggestion of discussions on how the amendment might work; I will be interested to hear his response.
On Amendment 297, which I also support, I make only two brief points. First, I very much agree with what everybody has said that tonight is not the time to be discussing the merits of assisted dying; that is not what this amendment is about. Many Members on both sides of the argument have made it clear that Parliament needs to decide this issue, and the amendment from the noble Lord, Lord Forsyth, seeks to find a way of making that possible. I feel the same sort of alarm as my noble friend Lady Wheatcroft in finding myself on the opposite side to that of the noble and learned Lord, Lord Mackay, but, with the greatest respect, I think he himself said we were waiting for a decision from Parliament before the Government could act on this. In that case, there has to be some way or process for making such a decision happen. That is exactly what the noble Lord, Lord Forsyth, is trying to produce with this amendment. No doubt there are ways of  improving how that is done, maybe by giving more time to my noble friend Lady Meacher’s Bill. This responsibility is Parliament’s to resolve, and I cannot believe that, in this great Parliament, we cannot find a way of doing it.

Baroness Fraser of Craigmaddie: My Lords, I rise partly because my noble friend Lord Forsyth referred to me earlier and partly because I wanted to clarify what is happening in the Scottish Parliament. There is not actually a Bill in front of the Scottish Parliament. The Orkney MSP, Liam McArthur, carried out a consultation which was very wide-ranging and closed only at the very end of December. Liam McArthur has reported that the submissions to his consultation were wide-ranging and unprecedented, and I look forward with great interest to reading some of them. You can look some of them up. I commend the Scottish Partnership for Palliative Care’s website; its submission is published there. The Neurological Alliance of Scotland also published a submission—I declare an interest because I am a trustee of the latter.
Both those submissions illustrate that this is a very complicated issue, as noble Lords have acknowledged, and there are many things that need evening out before we even get to potentially having draft legislation—a Bill or whatever it is; I am still learning parliamentary procedure. I find it interesting that my noble friend Lord Forsyth mentions that there might be a majority for assisted dying in the Scottish Parliament. I remind him that there is currently a majority for independence in the Scottish Parliament, but that does not mean that the people of Scotland want independence.
In my short time in this House, I have seen many amendments that may have been worthy in their own right but were in the wrong place in the wrong Bill. I think Amendment 297 in the name of my noble friend—I feel very nervous suggesting this to such an esteemed colleague—may possibly be the wrong amendment in the wrong Bill.

Baroness Walmsley: My Lords, I rise to speak on my own behalf; I am not representing anybody. The substantive issue is a conscience issue. I do, however, support the amendment in the name of the noble Lord, Lord Forsyth, because I think it is a discussion whose time has come. I am very impressed and pleased that noble Lords have resisted the temptation to discuss the substantive issue this evening, because all of us here understand—unfortunately, many outside do not—that this amendment is not about the substantive issue.
However, I am somewhat disappointed that the noble and learned Lord, Lord Mackay of Clashfern, wishes to knock it out on a procedural point. I think it is much more important than that. The noble and learned Lord is a wily old politician, and he knows very well that if you want to defeat something, it is often a very good idea to try to get rid of it on a procedural point. He suggested that we should use the Private Member’s Bill procedure. He has been in this House long enough to know that very few Private Members’ Bills are taken up by the Government and given time, and if they are not given time, they are going nowhere. But it is clear that this country wishes to discuss the matter and have Parliament decide on it.
The noble Lord, Lord Moylan, suggested that we cannot put anything in the Bill that the Government do not want to do. I remind him that every time we defeat the Government on an amendment, we are asking them to do something they do not want to do—and we did it 14 times last week on the policing Bill.
I have one other point. The right reverend Prelate the Bishop of Carlisle talked about vagueness. I think the noble Lord, Lord Forsyth, has been deliberately vague, because it is for the draft Bill to be specific. That is important because we need something very specific to discuss, with specific powers and safeguards that Parliament has put in. Without that, we would have all the fear that we have around the country, much of which has been expressed in our inboxes in these last few weeks. People are afraid of what might be in the Bill and what Parliament might pass, and only if we have a specific set of proposals in front of us can we amend it to put in the proper safeguards. Parliament can then decide, and people can take their view about it. I think that will take away a lot of the fears of people who believe that there will be no safeguards, because I am convinced that this Parliament would put in proper safeguards. If it did not, a lot of noble Lords would suggest some that jolly well should be there, and rightly so. For those reasons, I hope the Minister will consider the amendment in the name of the noble Lord, Lord Forsyth.
On the amendment in the name of the noble Baroness, Lady Meacher, again, I am so glad that she said it is a probing amendment, because other noble Lords have suggested that the drafting would need to be changed to avoid some unintended consequences. I am quite sure that the noble Baroness would do that if it was more than a probing amendment. She is asking for something that patients need: choice at the end of life. I hear what the noble Baroness, Lady Finlay, said about what is already in place. She is an expert on this. It could well be that a conversation needs to be had about whether there needs to be anything further in legislation to strengthen the availability of what the noble Baroness, Lady Finlay, talked about, which sounds absolutely excellent. So I am not expressing a definite opinion on that amendment.
I hope the Minister will consider the amendment in the name of the noble Lord, Lord Forsyth, because we, as practical politicians, know that in the real world—in this Parliament—the Bill brought forward by the noble Baroness, Lady Meacher, is not going anywhere, but we need to have the discussion.

Baroness Stroud: My Lords, I believe it is really important to understand what Amendment 297 does and does not do. It is my understanding that this amendment instructs the Secretary of State—not Parliament—to lay before Parliament a draft Bill that would permit terminally ill, mentally competent adults legally to end their own lives with medical assistance. I listened carefully to my noble friend’s speech on the matter just before Christmas, and I hugely empathise with his own personal journey. But it is important for us to understand what this amendment actually does and does not do.
Having consulted with the clerks, I would like confirmation from the Minister that this amendment does not require the Secretary of State to introduce a Bill. In fact, the phrase that was used to me was that this is the equivalent of posting a Bill through the letterbox of Parliament. I believe that, if this were to result in the Secretary of State having to introduce a Bill, that would be unconstitutional, as this House cannot dictate the business of the other place. Could the Minister confirm that the only impact this amendment would have would be to cause a drafting of a Bill and not its introduction?
If this is the case, though, I am concerned about the narrative that is developing around this amendment. It has been referred to as a guarantee of parliamentary procedure. It has been referred to as Members of the House of Commons and the House of Lords having the opportunity to debate this Bill. It has been said that this amendment would facilitate the debate—that it would give the opportunity for Parliament to debate. This amendment does no such thing, and it is my real concern that it is being sold to us as a House on the basis of us having the opportunity to debate something, when actually that is not the case.
It begs the question, therefore, why my noble friend Lord Forsyth would want to table such an amendment. Is it possible he believes that the drafting of a Bill by government would confer legitimacy on an otherwise non-government policy? If so, this amendment should be treated with great care. The value and worth of our terminally ill, mentally competent adults are too great to be dealt with in such a way. Are we really arguing that because end-of-life palliative care is so patchy, we need to introduce euthanasia? Surely we need a universal service of palliative care rather than this amendment.

Lord Bethell: My Lords, I would like to speak in support of Amendment 297 from my noble friend Lord Forsyth and specifically address the issue of timing that the amendment refers to:
“The Secretary of State must, within the period of 12 months beginning with the day on which this Act is passed, lay before Parliament a draft Bill,”
and so on. I feel competent to address this point because I was asked myself, when I was Minister, whether the Government should support a debate with a Government-supported Bill on this issue. There were five conclusions that I reached during my thoughts on the matter.
The first was that a Private Member’s Bill, however worthy, was just not going to get across the Table. It was like a soggy piece of spaghetti—very difficult to push across. This issue is very complex, and a large amount of consultation is needed, quite rightly on such a delicate issue, that only a Government can engage in. PMBs may be all right for cosmetic fillers, but not for assisted dying.
Secondly, on soundings with the professions, there was clearly a massive change in the sentiments of the medical professions, and the appetite and desire for reform was profound, among both the membership and the leadership. That was something we had to take account of.
Thirdly, reform in like-minded countries such as Canada, New Zealand and even Ireland had changed the international context for this issue. We cannot duck the fact that Britain is actually behind the curve on this matter.
Fourthly, public opinion has moved a long way on this. The noble Baroness, Lady Wheatcroft, referred to this.
Lastly, there was a large amount of interest, privately, among parliamentary colleagues in engaging on this subject, particularly among those who were not necessarily highly focused on the issue.
My conclusion was that the time was right to have this debate. My message to the Minister is that it is right that the inconsistencies and delicacies of this issue are tackled by the Government and soon. In the phrase of TS Eliot in “The Waste Land”:
“HURRY UP PLEASE ITS TIME”.

Lord McCrea of Magherafelt and Cookstown: My Lords, I rise to make just a short contribution. I listened carefully to the words of the noble Lord, Lord Forsyth, for whom I have great personal respect. I watched him in another place and saw his great ability in debate, and I have no doubt whatever that he has much to contribute to the debates here in this House and will do so in the future. However, I have to say that I profoundly disagree with him in this case.
The noble Lord said that he had changed his mind on assisted suicide. He mentioned personal circumstances within the family and then he said that he thought about his own personal circumstances if he were in that position. I do not believe that that is the best way to bring legislation forward, based on your own personal circumstances; you are therefore bringing legislation in for the whole country to meet your own personal circumstances. I have empathy with him and understand the personal circumstances he has had to face.
I say to the noble Lord that I come from a different perspective. I have personal experience of the awful pain of the suicide of a loved one. I know what it is for a family member to come to their wits’ end because of their personal circumstances, where cancer had ravaged the whole family circle, even taking a little child of four, and they could not face life any more. Were they terminally ill? I tell your Lordships, they had died within because of their circumstances. Were they mentally competent to make a decision? They made a decision, and I am sad to say that the rest of the family circle has had to live with that awful pain within their hearts.
This is not an easy situation. I understand that we say that we are not talking about the particulars of a Bill, but this amendment says:
“The Secretary of State must, within the period of 12 months beginning with the day on which this Act is passed, lay before Parliament a draft Bill to permit terminally ill, mentally competent adults legally to end their own lives with medical assistance.”
That is certainly assisted suicide. I heard other noble Lords saying that this was simply asking for parliamentary time to have a debate. We had a long debate in this House on the Bill in the name of the noble Baroness, Lady Meacher, which is in fact progressing.
I notice that the noble Lord is shaking his head. I have to ask this question. Numerous Private Members’ Bills are going through this House and are progressing,  perhaps at a slow speed. Why is this one different from the others? Do we ask the Government simply to pick this one out and forget about all the rest, or are we saying that they should do it in a timely fashion? Let the Government give this special time to those that are already in that process, and when it comes to the Bill in the name of the noble Baroness, Lady Meacher, time can be given for that to progress and to provide a Bill.
Over these past two years this whole nation has been fighting to save life, not take it. We have spent billions of pounds in trying to do that and I pay tribute to the health service for all its efforts. An assisted suicide law, however well intended, would alter society’s attitude towards the elderly, the seriously ill and the disabled, sending a message that assisted suicide is an option that they ought to consider. Society should not allow a double standard in allowing some people an assisted suicide while we do all we can to prevent young people and other vulnerable groups committing suicide—

Lord Warner: I am sorry to interrupt the noble Lord but is he aware that in all the countries I cited in my speech, parliaments played a facilitating role in changing the law and consulting their citizens on these kinds of changes? Is it not a bit strange that so many English-speaking and non-English-speaking democracies that we all respect managed to go down that path with the help and facilitation of their own parliaments?

Lord McCrea of Magherafelt and Cookstown: My Lords, there is a process that the noble and learned Lord, Lord Mackay, outlined tonight for how this issue could proceed. I believe we should bow to his legal and learned knowledge concerning this matter.
I think society should give everything financially and provide palliative care to those who are in need at the end of life. I trust and pray that this House will send a clear message that we will do everything to ensure people live with decency and honour rather than telling them that we will help them to die.

Baroness Merron: My Lords, this debate has probably exposed more that is not resolved rather than what is resolved. Having listened very closely to the passionate, informed and often personal contributions from noble Lords this evening, I feel there was some inevitability that that is where this debate would lie.
I want to touch on the two amendments before us. I am grateful to the noble Baroness, Lady Meacher, for clarifying that Amendment 203 is a probing amendment. I am reminded of when we debated these issues in the previous group where your Lordships’ House had great regard for ensuring that a patient’s final wishes should be respected as a kindness. This allows respect and dignity but is also practical in respect of reducing unplanned hospital admissions and other interventions.
There may well be merit in further consideration of the sentiments in the noble Baroness’s amendment that patients should have the opportunity for meaningful conversation about what matters most to them at the end of their life. Of course, the noble Lord, Lord Carlile, is also right about ensuring protection for those who are more vulnerable, and I am sure that, in the course of further discussions, those considerations will be made.
With regard to Amendment 297 put forward by the noble Lord, Lord Forsyth, obviously your Lordships’ House has heard, as I have, the depth and range of concerns and opinions across this issue. Such an important legislative change as proposed in this amendment would need to be its own topic, in its own Bill. I do not feel that any steps towards such a monumental change should be added via an amendment to a Bill that concerns itself entirely with other matters, as does this Bill.
In conclusion, whatever the views of noble Lords on assisted dying and however strongly held those views are, I believe that your Lordships’ House should do justice to it but that this Bill does not provide that opportunity.

Lord Kamall: My Lords, this has been a fascinating discussion and debate. I recall watching the debate on the Private Member’s Bill of the noble Baroness, Lady Meacher, a few weeks ago; I remember thinking that that was Parliament at its best. The arguments on both sides are fascinating—thank goodness I was not the Minister responding.
I thank my noble friend Lord Forsyth for assuring me today that we were not going to re-open the whole issue but talk only about the merits of the noble Lord’s amendment. Before I turn to his amendment, I will start with Amendment 203 tabled by the noble Baroness, Lady Meacher.
It is incredibly important that everyone at the end of their life, whether or not they have been diagnosed with a terminal illness, has the opportunity to discuss their needs, wishes and preferences for future care, so that these can be taken fully into account. There is ongoing work across the health and care system, as the noble Baroness, Lady Finlay, alluded to, to support this aim, including a commitment within the NHS Long Term Plan to provide more personalised care at end of life, and a recently updated quality statement from NICE on advanced care planning. In addition, we have established the ministerial oversight group on Do Not Attempt Cardiopulmonary Resuscitation, following the CQC’s review of this during the Covid-19 pandemic. This group is developing a set of universal principles for advance care planning to further support health and care professionals in having appropriate and timely discussions with individuals at the end of life. We believe that patient choice is a powerful tool for improving patients’ experience of care, and we intend to ensure that effective provisions to promote patient choice remain. However, I do not feel it is appropriate to specify the level of detail included in Amendment 203 in the Bill, and I hope the noble Baroness, Lady Meacher, will consider withdrawing her amendment.
Let us now turn to the amendment that has been much discussed. As many noble Lords have rightly said, it is a long-standing position that any change to the law on assisted dying is a matter for Parliament to decide, rather than one for government policy. Assisted dying remains a matter of individual conscience, on which there are deeply held and very sincere views on  all sides. Sometimes these are informed by one’s own experience of family members; other times, these are informed by one’s faith. You can rationalise it, or argue, but people have very strong feelings on both sides.
Noble Lords are aware of the Private Member’s Bill of the noble Baroness, Lady Meacher, on this subject, and we look forward to further debate in Committee when parliamentary time allows. I will commit to discussing this with the Chief Whip, given the request that was made. But as this matter is so important and is a matter of conscience, we cannot take a partisan position. If the will of Parliament is that the law on assisted suicide should change, the Government would not stand in the way of such change but would seek to ensure that the law could be enforced in the way that Parliament intended.

Lord Forsyth of Drumlean: I am most grateful to my noble friend. Could he just clarify what he said? Did he say that there was a possibility that time would be made available for the Bill of the noble Baroness, Lady Meacher?

Lord Kamall: I am afraid that I cannot give that guarantee. I will commit to speak to the Chief Whip about whether time could be made available.

Noble Lords: Oh!

Lord Kamall: I was not expecting that reaction.
On Amendment 297, it would not be appropriate to include a commitment to bring forward new primary legislation in the Bill. Future Bills and the use of parliamentary time are decisions that are rightly made via other avenues. As I said, I will commit to speak to the Chief Whip—he is not very far from me at the moment.
A number of noble Lords spoke about definitions. It seems that tonight we have challenged the definition of “neutral”. I was told that if I did not support this amendment, it would not be a neutral position. Given that those who spoke in favour of the amendment tend on the whole to be in favour of assisted dying, would it be a neutral position if I supported it? Therefore, have we now got a subjective understanding of neutrality or, as I said in my PhD viva, a subjective view of objectivity?
For all these reasons, I ask the noble Lord to consider not moving his amendment, but I fully expect him to come back to it in future.

Baroness Meacher: My Lords, I thank the noble Lord, Lord Forsyth, for tabling his amendment. I was asked by other noble Lords to make it absolutely clear, and I have no problem with this, that I fully and strongly support his amendment. I did not speak to it because of time.
I thank a lot of noble Lords for being very good this evening about not addressing the great issue of assisted dying, because that would have been entirely inappropriate. Many noble Lords have been careful not to do that, so I am grateful to them. I am also  grateful to the many noble Lords who have made clear their support in particular for Amendment 297. I was very clear about my own amendment; it is a probing amendment. I thank the Minister for his response and the Chief Whip for placing this at the very end of the day so that we did not spend 12 hours on it—I think we can all be grateful for that. I thank all noble Lords here tonight. I beg leave to withdraw the amendment.

Lord Forsyth of Drumlean: My Lords, it is late. Tempted as I am to respond to all the arguments that have been put—I have some extensive notes here—I want to make just two points.
First, on the procedural arguments that have been put, if the amendment was not in order, it would not have been allowed to be put on the Marshalled List. Had the clerks advised me that there was any constitutional or procedural problem with the amendment, of course I would not have tabled it—a tradition which I hope will be maintained in this House. All these arguments about procedure—people can think it is not the right thing to do, but ultimately it is for the House to decide. I am most grateful to my noble friend the Minister; I suspect the Chief Whip will not be as accommodating as he might have hoped when he has his conversation with him.
The Minister made the point that many of the people who supported my amendment had a particular view on this issue, but it is important to point out that all those who sought procedural reasons for why it would be inappropriate also have a particular point of view. That is why we need a proper debate.
On the Private Member’s Bill of the noble Baroness, Lady Meacher, the most disingenuous argument has been that which says, “Well, we’ve got a Bill before us”, when there is not time even for a Committee stage and there are some 200 amendments. It is well-trodden path.
I shall not say any more other than that if I wanted to summarise succinctly, I would probably have said everything that the noble Baroness, Lady Walmsley,  said. Not only is this the first occasion that I have praised the Scottish Parliament to the skies but it is the first occasion that I have relied on a Liberal to put into words what I feel about an issue. The Committee should also take notice of what my noble friend Lord Bethell, who was the Minister, had to say. He said that he would like to have done this as a Minister. I do not know whether my noble friend wants to change places with him again so that he can come back and make it happen. It is wonderful how when one is no longer in government one is able to say all kinds of things one was not able to say in government.
On the basis that I believe that this matter needs to be decided by the House, I shall consider the points that have been made and come back to it on Report, but I think that I will want at that stage to test the opinion of the House.
Amendment 203 withdrawn.
Amendment 204 not moved.
Clause 69 agreed.
Amendment 205 not moved.
Schedule 11 agreed.

  
Clause 70: Procurement regulations
  

Amendments 206 to 213 not moved.
Clause 70 agreed.

Lord Ashton of Hyde: My Lords, I have got up twice today to ask people to be succinct. Front Benches and Back Benches have been very good at that, so I want to say thank you very much. I am very grateful.
House resumed.
House adjourned at 11.26 pm.